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8/2/2019 Powell v Obama, Application for Discretionary Appeal, Georgia Supreme Court, 3-13-2012
http://slidepdf.com/reader/full/powell-v-obama-application-for-discretionary-appeal-georgia-supreme-court 1/90
IN THE SUPREME COURT
STATE OF GEORGIA
KEVIN RICHARD POWELl.,
Applicant
V.
BARACK OBAMA,
Respondent
*
*
*
*
*
CASE NO.
APPLICATION FOR DISCRETIONARY APPEAL
J. 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
8/2/2019 Powell v Obama, Application for Discretionary Appeal, Georgia Supreme Court, 3-13-2012
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KEVIN RICHARD POWELJi.,
Applicant
IN THE SUPREME COURT
STATE OF GEORGIA
*
*
V.
BARACK OBAMA,
Respondent
*
*
*
CASE NO.
APPLICATION FOR DISCRETIONARY APPEAL
Now comes Appl:_cant Kevin Richard Powell, by and through
undersigned counsel., and respectfully applies to this Court
pursuant to O.C.G.A. §§ 5-6-35(a) (1) and 21-2-5(e) for leave to
file a discretionar~T appeal from the Superior Court of Fulton
County's "Order GraIlting Respondent Barack Obama's Motion to
Dismiss," which was entered and filed on March 2, 2012, in
Applicant's Fulton ~;uperior Court action appealing a Final
Decision of Georgia Secretary of State Brian P. Kemp denying
Applicant's challencJe to the qualifications of Respondent Barack
Obama, a presidentiill candidate, to seek and hold the Office of
the President of the~ United States, and finding Respondent Obama
eligible as a candiejate for the presidential primary election.
Applicant respectfully shows to the Court that he is
attaching hereto: a'3Exhibit nAn a copy of the aforesaid "Order
Granting Respondent Barack Obama's Motion to Dismiss"; as Exhibit
nBn a copy of the "::>etitionFor Judicial Review" filed by
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Applicant in the Superior Court of Fulton County on February 15,
2012; as Exhibit "C'I a copy of Applicant's "Motion For Expedited
Review or, Alternat~_vely, For Stay of Decision of Secretary of
State and For Postpc)nement of Presidential Preference Primary
Election" filed on ~~ebruary 22, 2012; as Exhibit "0" a copy of
Respondent Barack Obama's "Motion to Dismiss" and Brief in
Support thereof served on February 27, 2012; as Exhibit "E" a
copy of Applicant's "Response to Respondent's Motion to Dismiss"
submitted to and acc:epted by the Superior Court of Fulton County,
as per the Court's I)ermission and instructions, by email on March
2, 2012 and thereaf-~er stamped as filed on March 5, 2012; and as
Exhibit "F" a copy of a letter dated January 25, 2012 from
Respondent's attorn(~y to Secretary of State Brian P. Kemp.
PART ONE
STATEMENT OF THE CASE
1.TYPE OF
Q~SE. This case is an Application For
Discretionary Appea. pursuant to O.C.G.A. §§ 5-6-35 (a)(1) and 21-
2-5(e) for leave to appeal from the Order of the Superior Court
of Fulton County di:3missing Applicant's "Petition For Judicial
Review" of a Final :)ecision of Georgia Secretary of State Brian
P. Kemp denying Applicant's challenge to the qualifications of
Respondent Obama, a presidential candidate, to seek and hold the
Office of the Presi(lent of the United States, and finding
Respondent Obama el.Lgible as a candidate for the presidential
primary election.
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2. SUPREME COURT JURISDICTION. The Supreme Court has
jurisdiction to entErtain this Application pursuant to O.C.G.A.
§§ 5-6-35(a) (1) and 21-2-5(e), as well as pursuant to the 1983
Constitution of the State of Georgia, Article VI, Section VI,
Paragraph II, as this case draws into question the
constitutionality of O.C.G.A. § 21-2-5 as applied to Presidential
Preference Primarie~:, and as this case involves the construction
of the ~natural borr Citizen" presidential eligibility
requirement of Article II, Section I, Clause 5 of the United
States Constitution, and this case thus falls within this Court's
exclusive appellate jurisdiction.
3. JUDGMENT 1l,PPEALEDAND DATE OF ENTRY. The Superior
Court of Fulton County's ~Order Granting Respondent Barack
Obama's Motion to Dismiss" was entered and filed on March 2,
2012.
4. STATEMENT OF FACTS. On or before October 31, 2011,
Respondent Barack Obama submitted a letter to the Executive
Committee of the Dem0cratic Party of Georgia seeking to be listed
on the Georgia Democratic Presidential Preference Primary Ballot.
Consequently, on Nov2mber 1, 2011, Georgia Democratic Party
Chairman Mike Berlon submitted, pursuant to O.C.G.A. § 21-2-193,
the name of Respondent Obama to the Georgia Secretary of State's
Office as a candidat2 to be listed on the Georgia Democratic
Presidential Prefere~ce Primary Ballot.
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Thereafter, pursuant to O.C.G.A. § 21-2-5(b), Applicant
Powell, a residentJf Gwinnett County, Georgia and a registered
voter in the State ()f Georgia and an elector eligible to vote for
candidates for the IJresidency of the United States, timely filed
with the Georgia Sec:retary of State a written challenge to the
qualifications of REspondent to seek and hold the Office of the
Presidency of the U~ited States. Applicant contended that
Respondent does not meet the "natural born Citizen" eligibility
requirement of Article II, Section I, Clause 5 of the United
States Constitution.
As prescribed b'{ O.C.G.A. § 21-2-5(b), the Office of the
Secretary of State referred Applicant's challenge to an
administrative law judge (hereinafter "ALJ") of the Office of
State Administrative Hearings (hereinafter "OSAH"). Thereafter,
pursuant to proper notice to all parties, the ALJ conducted a
hearing on January 26, 2012.
Applicant was pr"esent at trial and submitted into the
record, through coun~el, evidence and testimony pertaining to the
issues raised by his challenge. However, despite being timely
served with a Notice to Produce by Applicant's counsel requiring
Respondent to personally appear for trial and to bring with him
certain documents for use as evidence by Applicant at trial,
Respondent failed to appear for trial on January 26, 2012.
Likewise, Respondent's attorney also failed to appear for trial.
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No evidence or testimony whatsoever was introduced into the
record by or on beh~lf of Respondent at trial. The failure of
Respondent and his attorney to appear for trial on January 26,
2012 was knowing and intentional, as demonstrated by a January
25, 2012 letter written by Respondent's attorney to Georgia
Secretary of State Erian P. Kemp (Exhibit "F").
Applicant's evidence at trial established that Respondent's
father, Barack Hussein Obama, was born in Kenya and was a subject
of Great Britain. Additionally, Applicant established that
Respondent's aforesaid father, Barack Hussein Obama, was not a
citizen of the United States as of the date of birth of
Respondent in 1961 or at any other time whatsoever.
Nevertheless, 00 February 3, 2012, the ALJ issued an initial
Decision finding Res?ondent eligible as a candidate for the
presidential primary election. Pursuant to O.C.G.A. § 21-2-5(b),
the ALJ's Decision was reported to the Secretary of State.
Subsequently on FebrJary 7, 2012, pursuant to O.C.G.A. § 21-2
5(c), Georgia Secretary of State Brian P. Kemp issued a Final
Decision adopting th,~ initial Decision of the ALJ and denying
Applicant' s challengl~.
On February 15, 2012, pursuant to O.C.G.A. § 21-2-5(e),
Applicant timely fil(:;din the Superior Court of Fulton County a
"Peti tion For Judicia.l Review" appealing and seeking judicial
review of the Secretilry of State's Final Decision (Exhibit "B")
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Applicant's Petition also requested that the Court grant an
expedited hearing ani review of the case due to the fact that the
Georgia Presidential Preference Primary Election was scheduled to
take place less than three (3) weeks later, on March 6, 2012. In
a further effort to ·Jbtain some action by the Court in advance of
the election date, AJplicant then filed, on February 22, 2012, a
"Motion For Expedite,j Review or, Alternatively, For Stay of
Decision of Secretary of State and For Postponement of
Presidential Prefere~ce Primary Election" (Exhibit "C")
On February 27, 2012, counsel for Respondent served a
"Motion to Dismiss" .3ndBrief in Support thereof in which
Respondent argued th.3t the Court lacked jurisdiction over the
subject matter; that there was a failure of service of process;
and that Applicant's Petition failed to state a claim upon which
relief could be granted (Exhibit "0").
On March 1, 201.2, the Court notified counsel for Applicant
by email that, if ApJlicant wished to respond to Respondent's
"Motion to Dismiss," counsel would have until the following
mornlng, March 2, 2012 at 9:30 a.m., to do so (Exhibit "E," pp.
16-17). Counsel for Applicant thereafter submitted to the Court,
by the aforesaid dea,iline, Applicant's "Response to Respondent's
Motion to Dismiss" (~xhibit "E," p. 14), and the Court
acknowledged receipt of same in an email sent at 8:30 a.m. on the
morning of March 2, 2012 (Exhibit "E," p. 15). Just over two and
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Respondent's mother was a citizen of the United States at the
time of Respondent's birth.
6. The Superior Court erred in failing to reverse the
Final Decision of tte Secretary of State on the basis of the
ALJ's and the Secretary of State's error in finding that
Respondent qualifies as a "natural born Citizen" pursuant to
Article II of the United States Constitution, despite the fact
that Respondent's father was not a United States citizen at the
time of Respondent's birth.
PART THREE
ARGm!IENT AND CITATION OF AUTHORITY
Applicant would note at the outset that this Court's Rule
34, concerning the standard for granting discretionary appeals,
provides in pertinent part that "[a]n application for leave to
appeal a final judgment [pursuant to] O.C.G.A. § 5-6-35 shall be
granted," among other instances, when " [r]eversible error appears
to exist" or when "[t]he establishment of a precedent is
desirable."
In the instant case, as set forth hereinbelow, the Superior
Court, as well as the ALJ and the Secretary of State, made a
number of reversible errors. Additionally, as this case raises
significant issues regarding the State of Georgia's authority to
screen the qualifications of presidential contenders, and as
these issues are certainly capable of being raised with regard to
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future presidential candidacies, the establishment of a precedent
IS both necessary and desirable.
1. The Superior Court erred in holding that O.C.G.A. § 21-
2-5 does not apply in the context of a challenge to the
qualifications of a candidate in the Presidential Preference
Primary.
The Superior Court held that a.C.G.A. § 21-2-5, the Georgia
qualifications chal~_enge statute, does not apply to the
Presidential PreferE:nce Primary, as the Presidential Preference
Primary apportions delegates, but does not result in the
nomination or election of a presidential candidate. The Court
also found that Res:pondent is not yet a "candidate" for the
Presidential Electic1n, and that the Presidential Preference
Primary is not an "E!lection" within the meaning of the Georgia
Election Code. In this connection, Respondent contended before
the Superior Court t.hat the definition of "election" found in
a.C.G.A. § 21-2-2(5) includes general or special elections, but
not a primary or special primary unless the context in which
"election" is used ~clearly requires" the inclusion of a primary
or special primary.
The Superior Court and Respondent overlooked, however, the
provisions of a.C.G.A. § 21-2-15 inasmuch as
This chapter shall apply to any general or
special el.ection in this state to fill any
federal, ~tate, county, or municipal office,
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to any general or special primary to nominate
candidate,) for any such office, and to any
federal, state, county, or municipal election
or primar; for any other purpose whatsoever,
unless otherwise provided.
Also, the qual:Lfications challenge statute, O.C.G.A. § 21-2-
5, grants a right t()challenge the qualifications of "any
candidate," regardl(~ss of the specific type of election. Despite
the Superior Court'~3 finding to the contrary, contestants in a
Presidential Preference Primary are specifically designated by
statute as "candidates." O.C.G.A. § 21-2-193.
Respondent alscl argued in the Court below that a "candidate"
must be "certified by the state executive committee of a
political party" or must submit "a notice of candidacy," see
O.C.G.A. § 2l-2-5(a), and that neither of such conditions have
taken place as to Respondent. O.C.G.A. § 21-2-5 (b) provides,
however, that a challenge of the qualifications of any candidate
may be made "at any time prior to the election of such
candidate," and Resrondent's political party would presumably be
filing a certification of his nomination prior to the general
election. Addition~lly, Applicant submits that "certified" and
"notice of candidacy" are not specifically defined terms in the
Georgia Election Code, and one could argue that the list of
Presidential Preference Primary candidates submitted by
Respondent's political party pursuant to O.C.G.A. § 21-2-193
constituted a "certification" or a "notice of candidacy."
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Accordingly, it is apparent that the Georgia qualifications
challenge statute dces, in fact, apply to the Presidential
Preference Primary; that the Superior Court did properly have
subject-matter juri~:diction of Applicant's Petition; and that the
Superior Court committed reversible error in holding otherwise.
2. The Superior Court erred in holding O.C.G.A. § 21-2-5
unconstitutional as applied to a challenge to the qualifications
of a candidate in tbe Presidential Preference Primary.
The Superior Ccurt also granted dismissal for lack of
subject~matter jurisdiction based upon Respondent's argument that
First (and Fourteenth) Amendment associational rights of a
political party give the party the exclusive right to determine
whom to include on its Presidential Preference Primary ballot.
While Respondert contended that First Amendment
associational rights of a party are "most often litigated" in the
situation in which a party refuses to permit a name on a primary
ballot (citing Democratic Part V of u.S. v. Wisconsin, 50 U.S.
107, 101 S. Ct. 101C, 67 L. Ed. 2d 82 (1981); Duke v. Cleland,
954 F. 2d 1526 (lltt Cir. 1992)), he also claimed that "the
reverse is also true" in that the party has the unchecked right
to require certain rames on its primary ballot. Respondent,
however, cited no a~thority for the latter proposition.
The Superior Court essentially adopted Respondent's
argument, as the Co~rt held that the Secretary of State may not
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3. The Superior Court erred in holding that Applicant
failed to perfect service and in dismissing Applicant's action
based upon a finding- of failure to perfect service.
The Superior Court also ruled that, even if the Court
properly had jurisdiction pursuant to O.C.G.A. § 21-2-5,
Applicant "failed entirely to perfect personal serVlce upon
Respondent(s) as required by O.C.G.A. § 21-2-5(e) and O.C.G.A. §
9-11-4. The Superior Court apparently believed Applicant's case
to be subject to dismissal for the reason argued by Respondent
that "service of the summons and complaint was made by mailing to
[R]espondent's attorney." Respondent claimed that personal
service or a waiver thereof was required for a viable suit.
However, the case of Douqlas Asphalt Co. v. Georqia Public
Service Commission, 263 Ga. App. 711, 589 S.E. 2d 292 (2003) lS
controlling. In Douqlas Asphalt, the Court held that in an
appeal of an administrative decision of a state agency or other
tribunal, personal ~;ervice of the petition for judicial review
upon the agency was not required, and service by mail was proper
to preserve the jurisdiction of the court. The Court
specifically noted that service of appeals from an agency
decision is governec. by O.C.G.A. § 5-3-21, which provides In
pertinent part that "[a] copy of the notice of appeal shall be
served on all partiE~s in the same manner prescribed by Code
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Section 5-6-32." O.C.G.A. § 5-6-32(a), in turn, provides In
pertinent part that
Whenever under this article service or the
giving of any notice is required or permitted
to be made upon a party and the party is
represented by an attorney, the service shall
be made upon the attorney unless service upon
the party himself is ordered by the court.
Service of all notices and other papershereunder and service of motions for new
trial, motions in arrest, motions for
judgment notwithstanding the verdict, and all
other similar motions, orders, and
proceedings may be made by the attorney or
party filing the notice or paper, in person
or by mail, and proof thereof shown by
acknowledgment of the attorney or party
served, or by certificate of the attorney,
party, or other person perfecting service.
Therefore, in the instant case, service of the Petition upon
Respondent Obama by mailing same to his attorney was in
accordance with Georgia law.
Applicant further notes, however, that even if the service
by mail were for any reason not considered valid, O.C.G.A. § 5-3-
2l(b) states in pertinent part that "[f]ailure to perfect service
on any party shall rot work dismissal, but the superior court
shall grant continuances and enter such other orders as may be
necessary to permit a just and expeditious determination of the
appeal." Dismissal based upon the issue of service was therefore
inappropriate, and the Superior Court erred to the extent that
its dismissal was bcsed upon failure to perfect service.
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4. The Superior Court erred in failing to reverse the
Final Decision of the Secretary of State on the basis of the
ALJ's and the Secret,ary of State's errors in failing to determine
the proper placement, of the burden of proof and in failing to
apply such determina,tion in ruling uponApplicant's challenge.
In dismissing Applicant's Petition For Judicial Review, the
Superior Court failed to address the ALJ's complete failure to
make a determinatior, as to the proper placement of the burden of
proof as between the parties, as well as the ALJ's failure to
apply the burden of proof to his factual and legal conclusions.
On January 19, 2012, Applicant filed a "Motion For
Determination of Placement of Burden of Proof" in which he sought
an order, pursuant to Havnes v. Wells, 273 Ga. 106, 108-109, 538
S.E. 2d 430, 433 (2C:00), requiring Respondent to affirmatively
establish his eligibility for office. Not only did the ALJ not
rule on Applicant's motion in advance of trial, as was requested
by Applicant, but tt.e judge never even addressed or resolved the
motion in his final ruling.
OSAH Rule 616-~-2-.07(1) provides that, with certain
exceptions not appl~_cable herein, "[t]he agency shall bear the
burden of proof in 2111 matters." Further, OSAH Rule 616-1-2
.07(2) states that, "[p]rior to the commencement of the hearing,
the Administrative Law Judge may determine that law or justice
requires a different placement of the burden of proof."
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The challenge to Respondent's qualifications herein was not
initiated by the applicable agency, the Office of the Secretary
of State. Rather, the challenge was commenced by Applicant,
pursuant to O.C.G.A. § 21-2-5(b), "by filing a written complaint
with the Secretary of State .... " Upon the filing of Applicant's
challenge, the Secretary of State was required as a matter of
procedure, also pursuant to O.C.G.A. § 21-2-5(b), to refer the
challenge to the OSAH for a hearing.
Prior to the trial before the ALJ, the "agency," i.e. the
Office of the Secretary of State, made no determination of
candidate qualifications; issued no decision; and was not a party
to the challenge, and it would have therefore been inappropriate
for the agency to bear the burden of proof as initially suggested
by OSAH Rule 616-1-2-.07(1). The burden of proof therefore must
have been placed either with Applicant (i.e., to prove Respondent
ineligible) or with Respondent (i.e., to prove himself eligible)
However, under HavnE~, 273 Ga. at 108-109, Applicant was not
required, and should not be required, "to disprove anything
regarding [Respondent Obama's] eligibility to run for office .... "
rd.
The significance of the ALJ's failure to rule on the burden
of proof is immediately apparent. Respondent and his lawyer
failed to attend trj.al and failed to offer any evidence, and such
failures were intent:ional, as shown by Respondent's counsel's
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letter of January 25, 2012 (Exhibit ~F"). If Respondent did, as
Applicant contends, bear the burden of proof at trial, then
Respondent can in no way be said to have satisfied his burden,
and Applicant was entitled to judgment. Thus, the failure of the
Superior Court to reverse the Secretary of State, and the ALJ, on
the basis of their failure to address the burden of proof is
reversible error.
5. The Superior Court erred in failing to reverse the
Final Decision of the Secretary of State on the basis of the
ALJ's and the Secre1:~ary of State's errors in finding as "fact"
that Respondent was born in the United States and that
Respondent's mother was a citizen of the United States at the
time of Respondent' ~:~irth.
The ALJ's rulirlg, and consequently the Secretary of State's
ruling, on Applicant's challenge to Respondent's qualifications
relied upon certain alleged ~facts" which the ALJ said he
~considered." Spec:Lfically, the ALJ found as ~fact": 1) that
Respondent Obama was born in the United States; and 2) that
Respondent Obama's rnother was a citizen of the United States at
the time of Respond':;nt' birth.
However, as se: forth hereinabove, Respondent carried the
burden of proving his eligibility for office. Inasmuch as
Respondent and his ~ttorney did not appear for trial and did not
offer any evidence whatsoever, and inasmuch as the ~natural born
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Citizen" requirement for presidential eligibility mandates an
examination of Respondent's place of birth and the citizenship of
both of Respondent's parents at the time of Respondent's birth
(as is explained hereinbelow), Respondent failed to carry his
burden of proof as to his eligibility, and the above ~facts"
found by the ALJ were legally unsupported. The Superior Court's
failure to reverse the Secretary of State, and the ALJ, with
regard to these findings of ~fact" is reversible error.
6. The Superi.or Court erred in failing to reverse the
Final Decision of tb.e Secretary of State on the basis of the
ALJ's and the Secret:.aryof State's error in finding that
Respondent qualifies: as a "natural born Citizen" pursuant to
Article II of the United States Constitution, despite the fact
that Respondent's fc:Ltherwas not a United States citizen at the
time of Respondent'B birth.
The ALJ's (and subsequently the Secretary of State's) ruling
was grounded in the ALJ's adoption of the non-binding reasonlng
of the Indiana Court of Appeals in Ankenv v. Governor of Indiana,
916 N.E. 2d 678 (20()9), with regard to the ALJ's finding that a
person qualifies as a natural born citizen if he was born in the
United States becau~3e he became a United States citizen at birth.
Although, as p()inted out hereinabove, there was absolutely
no evidence whatsOe"ler submitted by Respondent at trial to carry
his burden of proof and establish Respondent's place of birth,
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the ALJ's ruling that a person's birth in the United States
automatically confers the status of "natural born Citizen"
pursuant to Article II of the United States Constitution is
unfounded; is an incorrect statement of the applicable law; and
is contrary to the ruling of the United States Supreme Court in
Minor v. Happersett, 88 U.S. 162, 167, 22 L. Ed. 627, 21 Wall.
162 (1875).
Minor is bindirg authority for the proposition that the
Article II phrase "ratural born Citizen" refers to a person born
in the United State~: to two (2) parents who were then (at the
time of the child's birth) themselves United States citizens.
Because, as Applicant's undisputed evidence at trial
demonstrated, Respordent Obama's father was not a United States
citizen at the time of Respondent's birth, Respondent does not
meet the Article II "natural born Citizen" requirement for the
presidency, and the ALJ and the Secretary of State committed
error in finding ottlerwise. The Superior Court thus likewise
committed reversible error in failing to reverse the ALJ and the
Secretary of State on this issue.1
CONCLUSION
For the above ~lnd foregoing reasons, Applicant respectfully
requests that the Supreme Court grant this Application For
lThis issue will be more fully briefed by Applicant upon the granting ofthis Application
For Discretionary Appeal.
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Discretionary Appeal and review and reverse the decision of the
Superior Court in this case.
Respectfully submitted, this 12th day of March, 2012.
HATFIELD & HATFIELD, P.C.
201 Albany AvenueP.O. Box 1361
Waycross, Georgia 31502
(912) 283-3820
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CERTIFICATE OF SERVICE
I, J. Mark Hatfield, Attorney for Applicant, do hereby
certify that I have this day served the foregoing Application For
Discretionary Appeal upon:
Mr. 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 a copy of same in the United States Mail in a properly
addressed envelope ~rith sufficient postage affixed thereto in
order to insure proper delivery, and by emailing same to Mr.
Jablonski at [email protected], and by emailing same
to Secretary Kemp at v:[email protected]. crO'I.
This 12th day of March, 2012.
HATFIELD & HATFIELD, P.C.
201 Albany AvenueP.O. Box 1361
Waycross, Georgia 31502(912) 283-3820
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Mark Hatfield
From:Sent:
To:
Subject:
Attachments:
~~.;, ,~,,~
DOC006.pdf (563
KB)
White, Connie [[email protected]]Friday, March 02,2012 11:04 AM
david. [email protected]; codyj [email protected]; [email protected];
van@liberty,egalfoundation.org; [email protected]; [email protected];[email protected]; [email protected]
Order Granting Respondent Barack Obama's Motion(s) to Dismiss-2012cv211398,
2012cv211~:27, 2012cv211528, 2012cv211537
DOC006.pdf
Hello,
Please find attached a stamp filed copy of the Order Granting Respondent Barack Obama's
Motion(s) to Dismiss 2012cv211398, 2012cv211527, 2012cv211528, 2012cv211537 from Judge
Wright's office.
Thank you,
Connie White
PLAINTIFF'SEXHIBIT
,/J \l
11
1
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*
CODY
***
* *CIVIL ACTION
*FILE NO. 2012 *
**
*
AIN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
©@~y(\FILED IN OFFICE
[ Ie"AR 2.1011 _
+EPUTY CLERK SUPERIOR COURT
N COUNTY. GA ~
~
CARL SWENSSON
**
** *
CIVIL ACTION
*
FILE NO. 2012CV211527*
**
*
KEVIN RICHARD POWELL,
*
*
* *CIVIL ACTION
*
FILE NO. 2012CV211528*
**
*
Farrar; et aI. v. Obama, et al: Civil Action No. 2012CV211398
Swensson v. Obama: CivilAction No. 2012CV211527
Powell v. Obama: Civil Action No. 2012CV211528
Welden v. Obama: Civil Action No. 2012CV211537
ORDER GRANTING MOTION{S) TO DISMISS Page 1
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DAVID P. WELDEN
**
** *
CIVIL ACTION
*
FILE NO. 2012CV211537*
**
*
ORDER GRANTING l:tESPONDENT BARACK OBAMA'S MOTION(S) TO DISM1SS
The above-captiolli:.ldactions are before the Court on the Petition(s) for Judicial Review
of Petitioners David Farral', et aI., Carl Swensson, Kevin Richard Powell, and David P. Welden,
which were filed in this Court on February 13, 2012 and February 15, 2012, respectively.
Although initially a.ssigned to four (4) different Superior Court Judges, the matters were
transferred to the Honorable Chief Judge Cynthia D. Wright, to whom the flIst-filed case was
assigned (Farrar, et al. v, Obama, et al., Civil Action File No. 2012CV211398), because each is
an appeal of the same deci1;ionissued on February 3,2012 by Administrative Law Judge Michael
M. Malihi in the Office of State Administrative Hearings and thereafter adopted by the Secretary
of State.
Presently before the Court is the Motion to Dismiss of Respondent Barack Obama, filed
in each of the above-refenmced actions on February 27, 2012. The Motion(s) to Dismiss are
identical in form and substance and will, therefore, be addressed by the Court in one
consolidated Order to be applied in each case. Now, having considered the Motion(s) to
Dismiss, the other pleading!;of record, and applicable Georgia law, the Court fmds as follows:
Petitioners filed their AppeallPetition for Judicial Review of the Secretary of State's
decision in this Court pursu.mt to O.C.G.A. § 21-2-5(e), which provides as follows:
Farrar, et al. v. Ohama, et al: CivilAction No. 2012CV211398
Swensson V. Obama: CivilActlon No. 2012CV211527
Powell v. Obama: CivilAction No. 2012CV211528
Welden v. Oboma: CivilAction No. 2012CV211537
ORDER GRANTING MOTION(S) TO DISMISS Page 2
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Page3
The elector filing the challenge or the candidate challenged shall
have the ri ght 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 Df 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 service of the petition, the Secretary of State shall transmit the
original or a certified copy of the entire record of the proceedings
under revi,;w to the reviewing court. The review shall be
conducted by the court without a jury and shall be confined to therecord.
Petitioners allege that Respondent Barack Obama is not a "natural born citizen"l and,
thus, is not qualified for candidacy in Georgia's 2012 Presidential Primary. Despite its
application in the court beilow, this Court does not believe that O.c.G.A. § 21-2-5 applies in this
case because the challenge at issue involves the Presidential Preference Primary, which by its
terms, is an opportunity for electors "to express their preference for one person to be a candidate
for nomination." O.C.G.l~. § 21-2-191. The Presidential Preference Primary apportions
delegates, but neither elec ts nor nominates candidates for the Presidency. Therefore, because
Respondent Barack Obama is not yet a "candidate" for the Presidential election in question and
because the Presidential Preference Primary is not an "election" within the meaning ofa.C.G.A.
§ 21-2-1, et seq., O.C.G.A. § 21-2-5 does not apply. See O.c.G.A. § 21-2-2(5) and 21-2-5.
Moreover, it is weB established in Georgia as elsewhere in the United States that voters
vote on "presidential electors," rather than voting directly for a candidate, when voting for the
Office of President of the United States. O.C.G.A. § 21-2-172. The political parties' candidates
for President are determined by convention of the political party. See O.C.G.A. §§ 21-2-191 to
IPetitioners claim is based, in pa:i, on a contention that at the time of his birth, Respondent's father was not acitizen ofthe United States.
Farrar, et al. v. Ohama, et al: CivilAction No. 2012CV211398
Swensson v. Ohama: Civil Action No. 2012CV211527
Powell v. abama: CivilAction No. 2012CV211528
Welden v. Ohama: CivilAction No. 2012CV211537
ORDER GRANTING MOTIONI:S) TO DISMISS
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SO ORDERED this the 2nd day of March, 2012.
c--~~\~YNTHIA D. WRIGHT, ChIef Judg~
Fulton County Superior CourtAtlanta Judicial Circuit
Copies to:
Via Email and U.S. Mail::
David Farrar, Pro Se
2059 Cavesprong Road
Cedartown, Georgia 30125
david. [email protected]
Cody Robert Judy, Pro Se
3031 Ogden Avenue, Suite #2
Ogden, Utah 84403
J. Mark Hatfield, Esq.
Hatfield & Hatfield, P.c.
201 Albany AvenueP.O. Box 1361
Waycross, Georgia 31502
Van R. Irion, Esq.
Liberty Legal Foundation
9040 Executive Park Drive: Suite 200
Knoxville, TN 37923
van(@'libertvlegalfoundatioll.org
Michael K. Jablonski, Esq.
2221-D Peachtree Road, NE
Atlanta, Georgia 30309
michael. iablonski@comca~::t.net
Farrar, et al. v. abama, et al: ':::ivilAction No. 2012CV211398
Swensson v. Ohama: CivilAction No. 2012CV211527
Powell v. ahama: Civil Action No. 2012CV211528
Welden v. ahoma: Civil Actio 11 No. 2012CV211537
ORDER GRANTING MOTION(S) TO DISMISS Page 5
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Cam-Anh Le, Esq.
Vincent Robert Russo, Jr., Esq.
Office ofthe Georgia Secretary of StateExecutive Office
214 State Capitol
Atlanta, Georgia 30334
vrusso(aJ,sos. ga.gov
David P. Welden, Pro Se
5530 Wright Road
Powder Springs, Georgia 30127
dpwelden(W,grnail.com
Farrar, etal. v. Ohama, et al: Civil Action No. 2012CV211398
Swensson v. Ohama: Civil Action No. 2012CV211527
Powell v. Ohama: Civil Action No. 2012CV211528
Welden v. Ohama: Civil Action No. 2012CV211537
ORDER GRANTING MOTIONC::) TO DISMISS Page 6
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Court
/ill' Su periorD State
Plaintiff(s)POWELL, KEVIN RICHARD Defendant(s)OBAMA, BARACK
Last Firstiddle I. Suffix Prefixaidenastirstiddle I. Suffix Prefixaidenirstiddle I. Suffix Prefixaidenastirstiddle I. Suffix Prefixaidenirstiddle I. Suffix Prefixaidenastirstiddle I. Suffix Prefixaidenirstiddle I. Suffix Prefixaidenastirstiddle I. Suffix Prefixaiden No. of Defendants 1Pro Se
Last
Bar # 337509
First Middle I. Suffix
Check Primary Type (Che<:konly ONE)
o Contract! Account
o Wills/Estate
o Real Property
o Dispossessory/Distress
o Personal Property
o Equity
o Habeas Corpus
~ Appeals, Reviews
D Post Judgment Garnishment, Attachment, orOther Relief
o Non-Domestic Contempt
o Tort (If tort, fill in right column)
o Other General Civil Specif)' _, _
If Tort is Case Type:(Check no more than TWO)
D Auto Accident
D Premises LiabilityMedical MalpracticeOther Professional NegligenceD Product LiabilityOther SpecifY
Are Punitive Damages Pleaded? DYes D No
PLAINTIFF'Sb EXHIBIT
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IN THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA
136 PRYOR STREET, ROOM C-I03, ATLANT A, GEORGIA 30303
SUMMONS . I . 'DEVIN RICHARD POWELL ; C ••• No" 201) C~'1)I :52.~
Plaintiff,VS.
BARACK OBAMA
Defendant
TO THE ABOVE NAMED DEFENDANT(S):
Your are hereby summoned alld required to file with the Clerk of said Court and serve upon plaintiffs
attorney, whose name and addl"ess is: J. MARK HATFIELD
HATFIELD & HATFIELD, P.C.201 ALBANY AVENUE
P.O. BOX 1361
WAYCROSS, GEORGIA 31502
(912) 283-3820
An answer to the complaint ,,vhich 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 TAKEN AGAINST YOU FOR THE RELIEF DEMANDED IN THE
COMPLAINTdhis --)_,=.2_----.--
To defendant upon whom this petition is served:
This copy of complaint and summons was served upon you , 20 _
Deputy Sherriff
Ins truct ions : At tach addendum shee t for addit ional part ie s i fneeded, make notat ion on this shee t i f addendum isused
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IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
KEVIN RICHARD POWELl:.,
Petitioner
v.
BARACK OBAMA,
Respondent
*
*
*
*
*
CIVIL ACTIOr: ~ I.. J '1)ILE No.2 )/2C/Y21 );32 ~
P]~TITION FOR .JUDICIAL REVIEW
Now comes Petitioner Kevin Richard Powell, by and through
undersigned counsel, and files this Petition For Judicial Review
against Respondent Barack Obama as follows:
1.
This action is an appeal of a Final Decision of Georgia
Secretary of State Brian P. Kemp denying Petitioner Kevin Richard
Powell's challenge to the qualifications of Respondent Barack
Obama, a presidential candidate, to seek and hold the Office of
the President of the United States, and finding ~espondent Obama
eligible as a candidate for the presidential primary election.
2.
This Court has jurisdiction of this appeal pursuant to
O.C.G.A. § 21-2-5(e).
3.
Petitioner Kevin Richard Powell is a natural person residing
in Gwinnett County, Georgia. He is a registered voter in the
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State of Georgia, and he is an elector eligible to vote for
candidates for the i?residency of the United States, including
presidential candida.te Barack Obama, the Respondent herein.
4 •
Respondent Obaln.a,on or before October 31, 2011, submitted a
letter to the Executive Committee of the Democratic Party of
Georgia seeking to be listed on the Georgia Democratic
Presidential Preference Primary Ballot. Consequently, on
November 1, 2011, Georgia Democratic Party Chairman Mike Berlon
submitted, pursuant to O.C.G.A. § 21-2-193, the name of
Respondent to the GE:~orgiaSecretary of State's Office as a
candidate to be list,ed on the Georgia Democratic Presidential
Preference Primary Ballot.
5 .
Pursuant to O.C.G.A. § 21-2-5(b), Petitioner timely filed
with the Georgia Secretary of State a written challenge to the
qualifications of Respondent to seek and hold the Office of the
Presidency of the United States. Petitioner's challenge
contended that Respondent does not meet the "natural born
Citizen" eligibility requirement of Article II, Section I, Clause
5 of the United States Constitution.
6 .
Also pursuant to O.C.G.A. § 21-2-5(b), the Office of the
Secretary of State thereafter referred Petitioner's challenge for
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a hearing before an administrative law judge of the Office of
State Administrative Hearings.
7 •
Pursuant to proper notice to the parties, a hearing was
conducted on January 26, 2012 before Administrative Law Judge
Michael M. Malihi. Petitioner was present at trial and submitted
into the record, through counsel, evidence and testimony
pertaining to the iE:sues raised by his challenge. Respondent and
his attorney, however, did not appear for trial and failed to
submit any evidence or testimony whatsoever.
8.
On February 3, 2012, the administrative law judge issued an
initial Decision, a copy of which is attached hereto as Exhibit
"A," finding Respondent eligible as a candidate for the
presidential primary election. Pursuant to O.C.G.A. § 21-2-5(b),
the administrative law judge's Decision was reported to the
Secretary of State.
9.
On February 7, 2012, pursuant to O.C.G.A. § 21-2-5(c),
Georgia Secretary of State Brian P. Kemp issued a Final Decision,
a copy of which is attached hereto as Exhibit "B," adopting the
initial Decision of the administrative law judge and denying
Petitioner's challen'je.
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10.
Pursuant to O.C.G.A. § 21-2-5(e), Petitioner now appeals and
seeks judicial revil~w of the Secretary of State's Final Decision
in this case, and fllrther seeks a reversal of that Final
Decision, for the rE!aSOn that substantial rights of the
Petitioner have beerl prejudiced because the findings, inferences,
conclusions, and decisions of the Secretary of State are:
(a) In violati.on of the Constitution and laws of this
state;
(b) In excess of the statutory authority of the Secretary
of State;
(c) Made upon unlawful procedures;
(d) Affected by other errors of law;
(e) Clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; and
(f) Arbitrary ~nd capricious and characterized by an abuse
of discretion and a:learly unwarranted exercise of discretion.
11.
In particular, Petitioner would enumerate the following
specific grounds for review of the Secretary of State's Final
Decision in this case:
(a) The admini:5trative law judge, and consequently the
Secretary of State aciopting the initial Decision of said judge,
erred in issuing a s::_ngleruling applicable to the cases of
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erred in failing to make a determination as to the proper
placement of the bu~den of proof and in failing to apply the
burden of proof in~eaching factual and legal conclusions in
Petitioner's case, despite the fact that Petitioner specifically
filed a pre-trial "l1otion For Determination of Placement of
Burden of Proof";
(e) The admin:_strative law judge, and consequently the
Secretary of State adopting the initial Decision of said judge,
erred in failing to find Respondent's deliberate failure to
appear for trial an event of default and in failing to sustain
Petitioner's challerlge to Respondent's qualifications on that
independent basis;
(f) The administrative law judge, and consequently the
Secretary of State adopting the initial Decision of said jud~e,
erred in adopting the reasoning of the Indiana Court of Appeals
in Ankenv v. Governor of Indiana and in finding that a person
automatically qualii:ies as a "natural born Citizen," pursuant to
Article II of the United States Constitution, by merely being
born in the United States, without regard to the citizenship of
his parents;
(g) The administrative law judge, and consequently the
Secretary of State adopting the initial Decision of said judge,
erred in failing to properly construe the ruling of the United
States Supreme Court in Minor v. Hapoersett;
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(h) The administrative law judge, and consequently the
Secretary of State adopting the initial Decision of said judge,
erred in finding that Respondent qualifies as a "natural born
Citizen" pursuant to Article II of the United States
Consti tution, despi':e the fact that Respondent's father was not a
United States citizen at the time of Respondent's birth; and
(i) The admin:,-stratie law judge, and consequently the
Secretary of State ildopting the initial Decision of said judge,
erred in failing at Petitioner's request to certify to this
Court, for a determination of appropriate action including a
finding of contempt,. the facts of the contemptuous behavior of
Respondent (and Respondent's counsel) in knowingly,
intentionally, and deliberately failing to comply with
Petitioner's Notice to Produce served upon Respondent.
12.
Petitioner resfectfully requests that this Court grant an
expedited hearing and review of this Petition due to the fact
that the Georgia Presidential Preference Primary Election is
scheduled to take place on March 6, 2012, less than three (3)
weeks hence.
13.
Pursuant to O.C.G.A. § 21-2-5(e)~ Petitioner further
respectfully requests that this Court order a stay of the Final
Decision of the Secretary of State finding Respondent eligible to
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be included on the::lallot in Georgia as a candidate for the
presidential primary election pending a final judgment of this
Court reviewing said Final Decision.
14.
This Petition is timely filed within ten (10) days after the
entry of the Final Decision by the Secretary of State.
15.
Pursuant to O.(:.G.A. § 21-2-5(e), the Secretary of State, as
soon as possible after service of this Petition, is required to
transmit to this Court the original or a certified copy of the
entire record of the proceedings under review.
WHEREFORE, Petj.tioner Kevin Richard Powell respectfully
requests that this Court:
(1) Conduct a hearing and review the record in this case on
an expedited basis;
(2) Grant Petitioner a stay of the Final Decision of the
Secretary of State finding Respondent eligible to be included on
the ballot in Georgia as a candidate for the presidential primary
election pending a final judgment of this Court;
(3) Issue an ord~r reversing the Final Decision of the
Secretary of State, finding that Respondent does not meet the
Article II "natural born Citizen" requirement for the presidency,
removing Respondent's name from the presidential ballot in
Georgia, and adjudging Respondent in contempt of court for his
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deliberate failure to comply with Petitioner's Notice to Produce
in the administrative proceedings; and
(4) Grant such other and further relief as the Court may
deem just and prope.r.
This 15th day of February, 2012.
HATFIELD & HATFIELD, P.C.
201 Albany AvenueP.O. Box 1361
Waycross, Georgia 3J.502
(912) 283-3820
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OFFICE OF STATE ADMINISTRATIVE HEARINGS
STATE OF GEORGIA
DA VID FARRAR, LEAH LAX, CODY JUDY,
THOMAS MALAREN, LAURIE ROTH,
Plaintiffs,
v.
BARACK OBAMA,
Defendant.
DAVID P. WELDEN,
Plaintiff,
v.
BARACK OBAMA,
Defendant.
CARL SWENSSON,
Plaintiff,
v.
BARACK OBAMA,
Defendant.
KEVIN RICHARD POWELL,
Plaintiff,
v.
BARACK OBAMA,
Defendant.
Docket Number: OSAH-SECST ATE-CE
1215136-60-MALIHI
Counsel for Plaintiffs: Orly Taitz
Counsel for Defendant: Michael Jablonski
Docket Number: OSAH-SECST ATE-CE1215137-60-MALIHI
Counsel for Plaintiff: Van R. Irion
Counsel for Defendant: Michael Jablonski
Docket Number: OSAH-SECSTATE-CE
1216218-60-MALIHI
Counsel for Plaintiff: J. Mark Hatfield
Counsel for Defendant: Michael Jablonski
Docket Number: OSAH-SECST ATE-CE
1216823-60-MALIHI
Counsel for Plaintiff: J. Mark Hatfield
Counsel for Defendant: Michael Jablonski
'.,PLAINTIFF'S
j,',~~~!BIT "
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DECISION I
Plaintiffs allege that Defendant President Barack Obama does not meet Georgia's
eligibility requirements £Dr candidacy in Georgia's 2012 presidential primary election.
Georgia law mandates thd candidates meet constitutional and statutory requirements for
the office that they seek. O.C.G.A. § 21-2-5(a). Mr. Obama is a candidate for federal
office who has been certified by the state executive committee of a political party, and
therefore must, under Georgia Code Section 21-2-5, meet the constitutional and statutory
qualifications for holding the Office of the President of the United States. ld. The United
States Constitution requin;:s that a President be a "natural bom [c]itizen." U.S. Const. art.
II, § 1, d. 5.
As required by GeDrgia Law, Secretary of State Brian Kemp referred Plaintiffs'
challenges to this Court fi)r 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,
Ma1aren, and Roth and their counsel Orly Taitz, Plaintiffs Carl Swensson and Kevin
Richard Powell and their counsel J. Mark Hatfield, and Plaintiff David P. Welden and his
counsel Van R. Irion, all appeared and answered the call of the case. However, neither
Defendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, the
Court would enter a defaul t order against a party that fails to participate in any stage of a
proceeding. Ga. Compo R. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the
I This Decision has been consolidated to include the four challenges to President Obama's candidacy filed
by Plaintiffs David farrar , et at., David P. Welden, Carl Swensson, and Kevin Richard Powell. Section I of
this Decision applies only to the case presented by Ms. Tailz on behalf ofMr. 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
Mr. Welden, Mr. Swensson, and Mr. PowelL Section II applies to all Plaintiffs.
2
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Defendant's failure to appear, Plaintiffs asked this Court to decide the case on the merits
of their arguments and evi dence. The Court granted Plaintiffs' request.
By deciding this matter on the merits, the Court in no way condones the conduct
or legal scholarship of Defendant's attorney, Mr. Jablonski. This Decision is entirely
based on the law, as well as the evidence and legal arguments presented at the hearing.
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I. Evidentiary Arguments of Plaintiffs Farrar, et al.
Plaintiffs Farrar, Lax, Judy, Malaren, and Roth contend that President Barack
Obama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr.
Obama maintains a fraudulently obtained social security number, a Hawaiian birth
certificate that is a computer-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. (Pl.s' Am. Compl. 3.)
At the hearing, Plaintiffs presented the testimony of eight witnesses2 and seven
exhibits in support of the:ir position. (Exs. P-I through P-7.) When considering the
testimony and exhibits, this Court applies the same rules of evidence that apply to civil
nonjury cases in superior court. Ga. Compo R. & Regs. 616-1-2-.18(1)-(9). The weight
to be given to any evidence shall be determined by the Court based upon its reliability
and probative value. Ga. Compo R. & Regs. 616-1-2-.18(10).
The Court finds the testimony of the witnesses, as well as the exhibits tendered, to
be of little, if any, probative value, and thus wholly insufficient to support Plaintiffs'
allegations.3 Ms. Taitz attempted to solicit expert testimony from several of the
witnesses without qualifyirlg 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
2 Originally, Ms. Taitz indicat~:d to the Court that she would offer the testimony of seven witnesses.
However, during her closing argllment, Ms. Taitz requested to testify. Ms. Taitz was sworn and began her
testimony, but shortly thereafte1'., the Court requested that Ms. Tatiz step-down and submit any furthertestimony in writing.
) The credibility of witnesses i!; within the sole discretion of the trier of fact. In non-jury cases that
discretion lies with the judge. See Mustang Tramp.. Inc. l'. fr. fV Lowe & Sons, Inc., 123 Ga. App. 350,352 (1971).
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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
that she has concluded that the social security number Mr. Obama uses is fraudulent;
however, her investigatory methods and her sources of information were not properly
presented, and she was never qualified or tendered as an expert in social security fraud, or
fraud investigations in gl~neral. Accordingly, the Court cannot make an objective
threshold determination oCthese witnesses' testimony without adequate knowledge of
their qualifications. See Rnudsen l'. Dl~Uee-Freeman. Inc., 95 Ga. App. 872 (1957) (for
the testimony of an expert witness to be received, his or her qualifications as such must
be first proved).
None of the testifying witnesses provided persuasive testimony. Moreover, the
Court finds that none of tile written submissions tendered by Plaintiffs have probative
value. Given the unsatisfaGtoryevidence presented by the Plaintiffs, the Court concludes
that Plaintiffs' claims are not persuasive.
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II, Application of tht:~"Natural Born Citizen" Requirement
Plaintiffs allege th,1tPresident Barack Obama is not a natural born citizen of the
United States and, therefDre, is not eligible to run in Georgia's presidential primary
election. As indicated supra, the United States Constitution states that ,,[n]o person
except a natural born Citizen ... shall be eligible for the Office of the President ... :4
U.S. Canst. art. II, § I, d. 5.
For the purpose of this section's analysis, the following facts are considered: I)
Mr. Obama was born in the United States; 2) Mr. Obama's mother was a citizen of the
United States at the time of his birth; and 3) Mr. Obama's father was never a United
States citizen. Plaintiffs c{mtendthat, because his father was not aU .S. citizen at the time
of his birth, Mr. Obama is constitutionally ineligible for the Office of the President of the
United States. The Court does not agree.
In 2009, the Indiana Court of Appeals ("Indiana Court") addressed facts and
issues similar to those befi)re this Court. Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct.
App. 2009). In Arkeny, thl~plaintiffs sought to prevent certification of Mr. Obama as an
eligible candidate for president because he is not a natural born citizen. fd. at 681. The
plaintiffs argued, as the Plaintiffs argue before this Court, that "there's a very clear
distinction between a 'citizen of the United States' and a 'natural born Citizen,' and the
difference involves having [two] parents of U.S. citizenship, owing no foreign
allegiance." ld. at 685. The Indiana Court rejected the arb'llmentthat Mr. Obama was
4 The definition of this clause Ilas been the source of much debate. See, e.g., Gordon, Who Can Be
President of the United States: nIl' Unresolved Enigma, 28 Md. L. Rev. 1 (1968); Jill A. Pryor, Note, The
Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resoh-ing Two Hundred Years
orUncertainty, 97 Yale L.J. 881 (1988); Christina S. Lohman, Presidential Eligibility: The Meaning of the
Natural-Born Citizen Clause. .16 GOIlL L. Rev. 349 (2000); William T. Han, Bl~yond Presidential
Eligibility: The Natural Born ClrizenClause as a Source (if Birthright Citizenship,58 Drake L. Rev. 457
(2010).
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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
and analysis ofArkeny persuasive.
The Indiana Court began its analysis by attempting to ascertain the definition of
"natural born citizen" because the Constitution does not define the term. ld. at 685-86;
See Minor v. Happersett, 88 U.S. 162, 167 (1875) ("The Constitution does not, in words,
say who shall be natural born citizens. Resort must be had elsewhere to ascertain that:');
see also United States v. Wong Kim Ark, 169 U.S. 649 (1898) (noting that the only
mention of the term "natural born citizen" in the Constitution is in Article II, and the term
is not defined in the Constitution).
The Indiana Coulil first explained that the U.S. Supreme Court has read the
Fourteenth Amendment and Article II (natural born citizen provision) in tandem and held
that "new citizens may be born or they may be created by naturalization." ld. at 685
(citing Minor, 88 U.S. at 167); See U.S. Const. amend. XIV, § 1. ("All persons born or
naturalized in the United States and subject to the jurisdiction thereof, are citizens of the
United States .... "). In Minor, the Court observed that:
At common-law, with the nomenclature of which the framers of the
Constitution were f::uniliar, 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 I~hildren 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 tosolve these doubts.
!d. at 167-68. Plaintiffs ask this Court to read the Supreme Court's decision in Minor as
defining natural born citizens as only "children born in a country of parents who were its
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citizens:' 88 U.S. at 167. However, the Indiana Court explains thatMinor did not define
the term natural born citiizen. In deciding whether a woman was eligible to vote, the
Minor Court merely conduded that children born in a country of parents who were its
citizens would qualifYas 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 tile meaning of the words "citizen of the United States" in the
Fourteenth Amendment and "natural born citizen of the United States" in Article II to
determine whether a ehild born in the United States to parents who, at the time of the
child's birth, were subject~;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 .... " !d. at 686
(citing rVong Kim Ark, 169 U.S. at 653). The Indiana Court determined that the two
provisions "must be interprl~tedin the light ofthe common law, the principles and history
of which were familiarly known to the framers of the constitution." Id. (citing Wong Kim
Ark, 169 U.S. at 654). The Indiana Court agreed that ··[t]he interpretation of the
constitution of the United States is necessarily influenced by the fact that its provisions
are framed in the language 'Jf the English common law, and are to be read in the light of
its history." !d. (citing Wong Kim Ark, 169U.S. at 655) (internal citation omitted). The
Wong Kim Ark Court extensively examined the common law of England in its decision
and concluded that Wong J.;;jmArk, who was born in the United States to alien parents,
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became a citizen of the United States at the time of his birth.5 Wong Kim Ark, 169 U.S. at
705.
5 The Wong Kim Ark Court explained:
The fundamental principle of the common law with regard to English nationality was birth
within the allegiance. also c:aUed "ligealty," "obedience," "faith" or "power," of the King. The
principle embraced all persons born within the King's allegiance and subject to his protection.
Such allegiance and protection were mutual ... and were not restricted to natural-born
subject') and naturalized sul:Uects, or to those who had taken an oath of allegiance; but were
predicable of aliens in ami':y, 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 amba~;sadors, or the children of alien enemies, born during and within
their hostile occupation of part of the King's dominions, were not natural-born subjects,
because not born within thf~ allegiance, the obedience, or the power, or, as would be said at
this day, within the jurisdiction of the King.
169 U.S. at 655.
It thus clearly appears that by the law of England it)r the last three centuries, beginning betl1re
the settlement of this country, 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 protection, the power, the jurisdiction, of the English Sovereign; and
therefore every child born in 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 plai:e where the child was born.
[d. at 658. Further:
Nothing is better settled at tLe common law than the doctrine that the children, even of aliens,
born in a country, while the :Jarents are resident there under tlle protection of the government,
and owing a temporary allegiance thereto, are subjects by birth.
1£1.at 660 (quoting Inglis v. Trw·tees o./Sailors· Snug Harbor, 28 U.S. (3 Pet.) 99,164 (1830) (Story, J .•
concurring». And:
The first section of the seccnd article of the constitution uses the language, 'a natural-born
citizen.' It thus assumes that ,:itizenship may be acquired by birth. Undoubtedly, this language
of the constitution was used in reference to that principle of public law. well understood in
this country at the time of the adoption of the constitution, which referred citizenship to the
place of birth.
1£1.at 662 (quoting Dred Scot! v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting».
Finally:
All persons born in the allegimce of the king are natural-born subjects, and all persons born in
tlle al legiance of the United~;tates are natural-born citizens. Birth and allegiance go together.
Such is the rule of the common law, and it is the common law of this country, as well as of
England.
Id. at 662-63 (quoting United States 1'. Rhodes, (1866) (Mr. Justice Swayne».
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•• ·•••• ··ft •.__ ·_····_··_··
Relying on the language of the Constitution and the historical reviews and
analyses of Minor and Wong Kim Ark, the indiana Court concluded that
persons born with in the borders of the United States are "natural born
citizens" for Artide II, Section 1 purposes, regardless of the citizenship of
their parents. Just as a person "born within the British dominions [was) a
natural-born Briti~:h 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 citizens."
916 N.E.2d at 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.6
For the purposes (If this analysis, this Court considered that President Barack
Obama was born in the United States. Therefore, as discussed in Arkcny, he became a
citizen at birth and is a natural born citizen. Accordingly,
CONCLUSION
President Barack Obama is eligible as a candidate for the presidential primary
election under a.C.G.A. § ::.1-2-5(b).
SO ORDERED, February ::;rd, 2012.
;\
~J~J~.,V~MICHAEL M. MALIHI, Judge
6 This Court recognizes that the U'ong Kim Ark case was not deciding the meaning or"natural born citizen"
for the purposes of detennining rresidential qualifications; however, this Court finds the Indiana Court's
analysis and reliance on these cas~:sto be persuasive.
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IN THE OFFICE OF THE SECRETARY OF STATE
STATE OF GEORGIA
DAVID FARRAR, LEAH LAX, CODY .JUDY,
THOMAS MALAREN, I,AIJRI.E:ROTH, Docket Number: OSAH-SECSTAT.E:
CE-1215136-60- MALUII
Petitioners,
Counsel for Petitioners: Orly Taitzv.
Counsel for Respondent: Michael.JablonskiBARACK OBAMA,
ResJlondent.
DAVID P. WELDON,
Petitioner,
v.
BARACK OBAMA,
Respondent.
CARL SWENSSON,
Petitioner,
v.
BARACK OBAMA,
Respondent.
KEVIN RICHARD POWEU ..,
Petitioner,
v.
BARACK OBA~fA.
Respondent.
Docket Number: OSAH-SECSTATE
CE-1215137-60- MAUHI
Counsel for Petitioners: Van R. Irion
Counsel for Respolldent: Michael Jablonski
Docket Number: OSAH-SECSTATE
CE-1216218-60- MAUHI
Counsel for Petitioners: J. Mark Hatfield
Counsel for Respondent: Michael Jablonski
Docket Number: OSAH-SECST ATE
CE-1216823-60- MAUHI
Counsel for Petitioners: J. Mark Hatfield
Counsel for Respondent: Mich~lelJablonski
PLAINTIFF'S
""', .EXHIBIT11'8" ,,'
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FINAL DECISION1
Petitioners filed candidate challenges pursuant to O.C.G.A. § 21-2-5(b) contending that
Respondent docs not meet be State of Georgiats eligibility requirements for his name to be listed
on the 2012 Presidential Preference Primary ballot. Judge Michael Malihi, Administrative Law
Judge ("AU") for the Officl~ of State Administrative Hearings, held a hearing on each candidate
challenge on January 26, 2012 and entered an initial decision for the above-captioned eases on
February 3,2012. The Secretary of State formally adopts the initial decision of the ALJ into this
final decision.
Thel'efore, IT IS HEREBY DECIDED THAT the above-captioned challenges are
DENIED.
SO DECIDED this ~;~ day of Fcbmary, 2012.
~ '~L-~ . ~'-fP. KEMP
Georgia Secretary of State
I Judge Michae1Malihi previously C Dnsolidatcd the above-captioned candidate challenges for the purpose of issuinghis initial decision. Those candidatl:' challenges remain consolidated for the purpose of issuing this Final Decision.
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CERTIFICATE OF SERVICE
I, J. Mark Hatfield, Attorney for Petitioner, do hereby
certify that I have this day served the foregoing Summons and
Petition For Judicial Review and attachments thereto upon:
Mr. Michael K. Jablonski
Attorney at Law
260 Brighton Road NE
Atlanta, Georgia 30309-1523
Honorable Brian P. Kemp
Secretary of State
State of Georgia
214 State Capitol
Atlanta, Georgia 30334
Honorable Michael M. Malihi
Administrative Law Judge
Office of State Administrative Hearings230 Peachtree Street NW
Suite 850
Atlanta, Georgia 30303
by placing a copy of same in the United States Mail in a properly
addressed envelope with sufficient postage affixed thereto in
order to insure proper d~livery, and by emailing same to Mr.
Jablonski at [email protected], by emailing same to
Secretary Kemp at [email protected], and by emailing same to
Judge Malihi at [email protected].
This 15th day of February, 2012.
201 Albany AvenueP.O. Box 1361
Waycross, Georgia 31:102
(912) 283-3820
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IN THEi,:UPERIOR COURT OF FULTON COUNTY
KEVIN RICHARD POWELl.,
Petitioner
V.
BARACK OBAMA,
Respondent
STATE OF GEORGIA
*
* CIVIL ACTION
* FILE NO. 2012CV211528
*
*
~~DEPUTY CLERK SUPERIO
L_ Fl(LTON COUNTY,
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 Kevin Richard Powell, by and through
undersigned counsel, and moves the Court for an expedited review
of the above-captioned appellate proceeding or, in the
alternative, for a stay of the Final Decision of the Georgia
Secretary of State herein and for a postponement of the Georgia
Presidential Preference Primary Election, and in support of this
Motion, Petitioner shows to the Court the following:
1.
This action is ~n appeal of a Final Decision of Georgia
Secretary of State Brian P. Kemp denying Petitioner Kevin Richard
Powell's challenge to the qualifications of Respondent Barack
Obama, a presidential candidate, to seek and hold the Office of
the President of the United States, and finding Respondent Obama
eligible as a candidate for the presidential primary election.
PLAINTIFF'S
EXHIBIT
I/c.~
Page -1-
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anticipates that Respondent would probably make such an argument
in an effort to avoid a decision on the merits of this appeal.
6.
With regard to Petitioner's request for an expedited review
of this appeal, Petitioner shows that Uniform Superior Court Rule
6.7 ("Motions in em(~rgencies.") provides that
Upon written nc)tice 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 suchexpedited procE!dure. The motion shall set forth in detail
the necessity i"or such expedited procedure.
7 .
In connection with Petitioner's alternative request for a
stay of the Final Decision of the Georgia Secretary of State
herein and for a postponement of the Georgia Presidential
Preference Primary Election, Petitioner shows that pursuant to
O.C.G.A. § 21-2-5(e), while "[t]he filing of the petition shall
not itself stay the jecision of the Secretary of Stater,] ...the
reviewing court may Jrder a stay upon appropriate terms for good
cause shown." Furth<~r, O.C.G.A. § 5-3-28(b), applicable to
appeals to superior I:ourt, provides that "[t]he superior court
may issue such order:3 and writs as may be necessary in aid of its
jurisdiction on appea.l."
8 .
Petitioner subm:.ts that, in order that Petitioner may secure
the review of the Secretary of State's Final Decision to which
Page -3-
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Petitioner is entitled by Georgia law, and in order that the
significant issue of constitutional interpretation raised by
Petitioner's action may be finally and decisively adjudicated,
this Court should g.rant expedited review of the instant appeal
or, in the alternative, the Court should grant a stay of the
Final Decision of the Georgia Secretary of State herein and a
postponement of the Georgia Presidential Preference Primary
Election currently ~;cheduled for March 6, 2012.
WHEREFORE, Petitioner Kevin Richard Powell respectfully
requests that this Court grant the relief requested by Petitioner
herein.
This 21st day of February, 2012.
HATFIELD & HATFIELD, P.C.
rk Hatfierd
Atbdrney for Pet1t\onerGeorgia Bar No. 3~7\09
201 Albany AvenueP.O. Box 1361
Waycross, Georgia 31502
(912) 283-3820
Page -4-
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CERTIFICATE OF SERVICE
I, J. Mark Hatfield, Attorney for Petitioner, do hereby
certify that I have this day served the foregoing Motion For
Expedited Review or( Alternatively, For Stay of Decision of
Secretary of State and For Postponement of Presidential
Preference Primary Election upon:
Mr. Michael K. Jablonski
Attorney at Law
260 Brighton Road NE
Atlanta, Georgia 30309-1523
Honorable Brian P. Kemp
Secretary of StateState of Georgia
214 State Capitol
Atlanta, Georgia 30334
by placing a copy of same in the United States Mail in a properly
addressed envelope with sufficient postage affixed thereto in
order to insure prop~r delivery, and by emailing same to Mr.
Jablonski at [email protected] and by emailing same
to Secretary Kemp at [email protected].
This 21st day o~ February, 2012.
HATFIELD & HATFIELD, P.C.
201 Albany AvenueP.O. Box 1361
Waycross, Georgia 31502
(912) 283-3820
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IN THE: SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA
KEVIN RICHARD POWELL,
Petitioner,
vs.
BARACKOBAMA,
Respondent
Civil Action File Number
2012 CV211528
MOTION TO DISMISS
Respondent moves t his Court for an order dismissing the petition as follows:
1.This Court :Iacks jurisdiction over the subject matter. O.C.G.A. § 9-11-
12(b)(1).
2. Failure of service of process. O.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-
11-12(b)(6).
Argument in favor of the motion to dismiss is set forth in the accompanying brief.
Respectfully submitted,
This 27th day of February, 2012.
MICHAEL JABLONSKIGeorgia State Bar Number 385850
2221-D Peachtree Road NE
Atlanta, Georgia [email protected] PLAINTIFF'S
EXHIBIT'I ,\=--r2
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IN THE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA
KEVIN RICHARD POWELL,
Petitioner,
vs.
BARACKOBAMA
Respondent
Civil Action File Number
2012 CV211528
Brief in ~:~upportof Respondent's Motion to Dismiss
The appeal from the Secretary of State's decision finding that President Obama is
qualified to appear on the Presidential Preference Primary ballot is one in a long line of
persistent challenges filed across the country since 2008. Not a single challenge has ever
been upheld.!
1.. See, Georgia cases: RhodeB v. MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), affd,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. Goodet aI, 4:2009cvoo082, 2009 WL 2163535 (M.D.Ga. July 16, 2008).
Federal cases: Allen v. Soetoro, 4:09-cv-00373, 2011 WL 2130589, (D. Ariz. May, 2010);
In re: American Grand Jur!/, 3:09mc00215(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 (9thCir., 2011); Berg v. Obama et aI, 574 F.Supp.2d 509 (E.D.Pa. 2008),
affd, 586 F.3rd 234 (3rd Cir. 2009), Cert. denied, 129 S. Ct. 1030 (2009); Berg v.
Obama, 656 F. Supp.2d. 10'7CD.D.C.Cir. 2009); Beverly v. Federal Elections
Commission, 09-15562 (KD. Cal., 2008), affdo9-15562 (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 Missouriet al v. Obama et aI, 6:08cv03405, 2011WL 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
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2870668 (D.C. Cir. 2008); Cook v. Good et aI, 4:2009cvoo082, 2009 WL 2163535,
(M.D. Ga. July 16,2008); Cook v. Simtechn 8:2009cV01382 (M.D. Fla., 2009); Craig v.
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. Obama,
2:08cv02754, 2009 WL532617 (E.n. Cal. March 2,2009); Ealey v. Sarah Obama, 4:08-mc-00504 (S.D.Tex.,2008); Essek v. Obama, OS-379-GFVT (E.D. Ky., 2008); Hamblin v. Obama,2:09cV00410, 2009 WL 2513986 (D. Ariz. Aug. 14,2009); Hamrick v. Fukino, 1:08-cv
00544, 2009 WL 1404535 (Haw., May 20, 2009); Herbert v. Obama, 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, 131S. 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. Obama, 2:10-CV-01075 (C.D. Cal., 2010); Judy v. McCain, 2:08cV01162
(USDC Nev., 2008); Kerchner v. Obama, 612 F.3d 204 (D.N.J. 2010), cert. denied, 131S. Ct. 663 (2010); Liberty I,egal Foundation v. DNC, CH-11-1757 (D Ariz., 2011);
Mackay v. Obama, 2:11-CV"05458-JP (E.D. Pa., 2011), voluntarily dismissed, No. 113862 (USDC Pa., 2011);McLanahan v. Obama, 2:11-CV-00374-EFS (D.Was., 2011);
Morrow v. Barak Humane Obama, 1:08-cv-22345 (S.D. Fla., 200B); Neely v. Obama,2:oB-cV-15243 (E.D.MI., 200B); Patriot's Heart Network v. Soetoro, 1:09-mc-00442RCL (D.D.C., 2009); In Re Paul Andrew Mitchell, 2:oB-cv-04083 (E.D. PA, 200B),affd
304 Fed. Appx 113, 200B vVL53B1436 (3rd Cir., 200B), mandamus denied, No. oB4443 (3d Cir., 2008); Purpura v. Sebelius, 3:1O-CV-04B14,2011WL 154776B, (D.N.J.Apr. 21, 2011); Rhodes v. Gates, 5:09-,cv-00703-XR (W.D.Tex., 2009); Rhodes v.
MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), affd, 2010 WL 892848 ( 11thCir.March 15, 2010) cert. denied, 129 S. Ct. 2B30 (2009); Robinson v. Bowen, 567
F.SUpp.2d 1144 (N.D.Cal. 2008); Roy v. Fed. Election, 2:08cvOI519, 2008 WL 4921263,(W.D. Wa. Nov. 14, 200B); Stamper v. US, l:oB CV2593, 2008 WL 4838073 (N.D.OH.
2008); Strunk v. Patterson, 1:oBcv042B9 (E.D.N.Y., 200B), appeal dismissed No. oB5422 (2d Cir. Nov. 14, 2008); Strunk v. U.S. Dept. of State, 693 F.SUpp.2d 112 (D.D.C.
Cir. 2010), mandamus den l'ed, 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. Obama, 70? F.SUpp.2d 1 (D.D.C. Cir. 2010), appeal pending, No. 115304 (DCCir., Oct. 31,2011); Taitz v. Astrue, 1:11-CV-00402,2011WL 3B05741, (D.D.C.
Aug. 30,2011); Taitz v. Astl'ue, 1:1l-mC-0015B (D.Haw., 2011); Taitz v. Ruemmier, 1:11CV-01421(D.D.C., 2011); Thomas v. Hosemann, 1:oBmco02Bo (D. Haw., 200B);Thomas v. Hosemann, 2:oB-cv-00241-KS-MTP (SD Miss., 2008).
State cases: Ankeny v. Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) Affd, No. 49A02
0904-CV-353 (Ind. App. Court); Brockhausen v. Andrade, No. 08-1001-C365 (Tex.State Court); Broe v. Reed, 82473-B (Was. State Supreme Court); Connerat v.
Browning, 999 So. 2d 644 O~la.Dist. Ct. App. 2008); Connerat v. Obama, No.09003103SC (Fla. State Court); Connerat v. Obama, No. 09005522SC (Fla. State
Court); Constitution Party v. Lingle, No. 29743, 200B WL 51259B4 (Haw. Dec. 5,200B); Corbett v. Bowen, No. 30-2008-00114112-CU-FR_CJC, (Cal. Superior Court,
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An effort to harass the President continues with qualification challenges filed
across the country and in (}eorgia. Challengers ignore procedural and evidentiary
requirements because thei r claims are without merit, based on fantasy, and offered in
pursuit of a political agenda. See, for example, Rhodes v. MacDonald, 670 F. Supp.2d
1363,1364 (M.D. Ga. 2009), affd, 2010 WL 892848 (11th Cir. March 15, 2010) cert.
denied, 129 S. Ct. 2830 (2009)("When a lawyer uses the courts as a platform for
2008); Craig v. Oklahoma: MA-109808 (Okla. Supreme Court); Donofrio v. Wells, No.
AN-I053-08T2 (NJ. Nov. 03, 2008), Cert. denied, 129 S. Ct. 752 (2008); Fitzpatrick v.Obama, no docket number (NC State Court); Greenberg v. Brunner, No. 2008cVI024(Ohio State Court, 2008); In re John McCain's Ineligibility to be on Presidential
Primary Ballot in Pa, 944 .A..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. State Court); Lightfoot v. Bowen, No. 168690 (Cal. SupremeCourt, 2008), Cert. denied, 555 U.S. 1151(2009); Marquis v. Reed, No. 08-2-34955-1(Was. State Court, 2008); lI,fartin 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, :;W09 WL 2372096 (Haw. Aug. 3, 2009); Martin v. Bennett,No. lCClO-l-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. loHoo0605 (Ill. State Court); Schneller v. Cortes, 199 MM
2008 (Pa. Supreme Court, :;W09), cert. denied, 129 S. Ct. 2830 (2009); Sorsensen v.Riley, cv-2008-1906 (Ala. S:ate Court, 2008); Spuck v. Sec. of State, 2008 CVI116(OhioState 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); Sv1livan v. Sec. of State, 08CV1076(N.C. State Court, 2008);Sullivan v. Marshall, 08cvs·, 021393 (N.C. State Court, 2008); Taitz v. Fuddy, lCCll-l
001731 (Haw. State Court); 'Terry v. Handel, 08cv158774S (Superior Court Fulton
County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsiderationdenied, No. S09A1373; Wroilnowski v. Bysiewicz, SC 18264 (Conn. Supreme Court,2008).
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political agenda disconnected from any legitimate legal cause of action, that lawyer
abuses her privilege to pradice law.")
President Obama was a United States citizen from the moment of his birth in
Hawaii. Since he held citizli~nshipfrom birth, all Constitutional qualifications have been
met. Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. App., 2009); see,
United States v. Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir., 2011). There is no
basis to question the President's citizenship or qualifications to hold office.
Specially appearing before this Court, respondent show that petitioner's actions
should be dismissed as they have been in numerous cases for lack of jurisdiction over
the subject matter, failure of service of process, and failure to state a claim upon which
relief can be granted. O.C.G.A. § 9-11-12(b)(1), (5), and (6).
1. LACKOF SUBJECT MATTER JURISDICTION
A. THE STATE OF GEORGIA MAYNOT EXERCISE
JURISDICTION- OVERA POLITICAL PARTY'S CHOICE OF
NAMES TO IN(;LUDE IN THE PRESIDENTIAL PREFERENCEPRIMARY.
The Democratic Part,? of Georgia, a political party as defined by O.C.G.A. § 21-2-
2(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 of the United States." O.C.G.A. § 21-2-191. No one is elected to any
office, nor is anyone nomin:lted to run for any office, as a result of the Presidential
Preference Primary. Nomination of a candidate for the office of President will occur at
the national convention in Charlotte, NC during the week of September 3, 2012.
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The Democratic Party of Georgia determines names to include on its Presidential
Preference Primary ballot at its sole discretion. O.C.G.A. § 21-2-193. A state political
party "enjoys a constitutionally protected freedom which includes the right to identify
the people who constitute this association that was formed for the purpose of advancing
shared beliefs and to limit the association to those people only." See Democratic Party
of u.s. v. Wisconsin, 50 U.S. 107, 101 S.Ct. 1010, 1019, 67 L.Ed.2d 82 (1981). Duke v.
Cleland, 954 F.2d 1526, 15~!,0-1nth Cir. 1992). First amendment associational rights of
a political party are most often litigated in the context of a party refusing to allow a
name to appear on a primmy ballot (such as in Democratic Party of u.s. v. Wisconsin
or Duke v. Cleland) but the reverse is also true: a political party enjoys the exclusive
right to dictate names on it~;:primary ballot. The right to associate not only contemplates
the ability to exclude but, necessarily, who to include.
Apportionment of de legates as a result of preference primary results constitutes
an internal party matter. The State of Georgia may not interfere with "the traditionally
recognized autonomy of the political party's internal decision-making." Belluso v.
Poythress, 485 F.Supp. 904, 912 (N.D. Ga., 1980); Duke v. Cleland, 954 F.2d 1526 (nth
Cir., 1992).
B. THE QUALIFICATIONS CHALLENGE STATUTE DOES NOTAPPLYTO THE PRESIDENTIAL PREFERENCE PRIMARY.
O.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." O.C.G.A. § 21-:;~-191.The election code defines "election" as "any general or
special election and shall not include a primary or special primary unless the context in
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which the term is used clearly requires clearly requires that a primary or special primary
is included. " O.C.G.A. § 21-2-2(5). Neither the preference statute nor the definition
reference the Presidential Preference Primary. Nothing in the context of O.C.G.A. § 21-
2-5 "clearly requires" applicability to the preference primary."
O.C.G.A. § 21-2-5 applies when a candidate is "certified by the state executive
committee of a political pailty or ... files a notice of candidacy." O.C.G.A. § 21-2-5(a).
Neither occurred here. (CeJltification of candidates by a party executive committee refers
to the qualification procedure in O.C.G.A. § 21-2-154(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 SUMMONS AND PETITION FOR REVIEW UPON AN
ATTORNEY REPRESENTING A PARTYIS 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 as authorized by O.C.G.A. § 9-1l-4(d) nor did it attempt
personal service using the m.ethods specified by O.C.G.A. § 9-1l-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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III. THE PETITION FOR REVIEW DOES NOT STATE CLAIMSAGAINSTTHE PRESIDENT
The proper party re:;;pondent when challenging a qualification decision made by
the Secretary of State is the Secretary of State. In order to grant the relief sought by the
petitioner the Secretary of State needs to be before the court. He is not. See, for example,
Handel v. Powell, 284 Ga. 550 (2008), in which the only parties in the appeal were the
Secretary of State and the c:hallenger of the Secretary's decision.
The relief sought by the petitioner is relief from a decision of the Secretary of
State. In paragraphs 13 and 15of 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. In 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, 646 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.2cl72 (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 Secret~':ryof State must be established before the court can enter
any ruling binding a party such as the Secretary of State or the ruling is declared null
and void. See Estate of MarJorie C. Thurman v. Dodaro, 169 Ga.App. 531, 532(1), 313
S.E.2d 722 (1984). Knowledge that the suit exists does not substitute for compliance
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with service of process statute. Williamsonv. Basenback, 298 Ga.App. 567, 680 S.E.2d
577 (2009).
The relief sought by the petition is directed against the Secretary of State, not the
President. The complaint does not state a claim against the President.
IV. CONCLUSION
Respondent specially appears in this Court to show that the petition for review
should be dismissed.
Respectfully submitt sd,
This 27th day of February, 2012.
MICHAEL JABLONSKI
Georgia State Bar Number 385850
2221-D Peachtree Road NEAtlanta, Georgia 30309404-290-2977
michael.jab Ionski@)comcast.l1et
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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 Law201 Albany AvenueP.O. Box 1361
Waycross, Georgia 31502
by statutory electronic service pursuant to O.C.G.A. § 9-11-5(e) using the email address
This 27th day of February, ~W12.
MICHAEL JABLONSKI
Georgia State Bar Number ~!,85850
2221- D Peachtree Road NE
Atlanta, Georgia 30309404-290-2977
micha el.jablonski (ji)comcast.net
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IN THE:SUPERIOR COURT OF FULTON COUNTY
* rFI~~[iNFFIC[~AR 05_
2~ID~PU1YCtERl( "WERIO. R COFULTON COUNTY, GA
fnFILE NO. 2012CV211528
* CIVIL ACTION
*
STATE OF GEORGIA
Petitioner
KEVIN RICHARD POWELJI~,
V.
BARACK OBAMA, *
Respondent *
PETITIONER'S RESPONSE TO
RE:SPONDENT'S MOTION TO DISMISS
Now comes Petitioner Kevin Richard Powell, by and through
undersigned counsel, and responds to Respondent Barack Obama's
Motion to Dismiss herein as follows:
PRELIMINARY STATEMENT
Respondent Obama's Motion to Dismiss initially claims that
the instant case is one in a series of cases filed across the
country since 2008 in "[a]n effort to harass" Respondent.
Respondent further claims that those individuals, presumably
including Petitioner herein, bringing challenges to Respondent's
qualifications for office "ignore procedural and evidentiary
requirements because their claims are without merit, based on
fantasy, and offered in pursuit of a political agenda." Finally,
Respondent claims that he "was a United States citizen from the
moment of his birth .inHawaii" and that therefore, "all
Constitutional (sic) qualifications have been met." A review of
- PLAINTIIFF'S EXHIUlT-,\IJ/:=_
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the record in this action, however, reveals that Respondent's
assertions are completely misguided.
Petitioner firnt notes that no individual, including
Respondent Obama, hcls a vested right to be the President of the
Un~ted States. An individual seeking to hold the Office of the
Presidency is expected and required to comply with the provisions
of the Constitution, including the eligibility requirements for
the presidency, and the laws of the United States and the Several
States thereof.
With the foregoing in mind, Petitioner would point out that
it was Respondent Obama, in fact, who initiated the submission of
his name as a candidate to be listed on the Georgia Democratic
Presidential Ballot. Likewise, in accordance with his rights
under Georgia law, P2titioner raised an administrative challenge
to the Respondent's qualifications as a "natural born Citizen"
pursuant to Article II of the United States Constitution.
Respondent and his la.wyer tried, unsuccessfully, to have
Petitioner's challenqe dismissed. Respondent was then legally
served with a Notice to Produce, requiring him to appear at trial
and to bring certain documents and items of evidence with him.
The Respondent did not object.
When the time for trial was imminent, the Respondent's
lawyer wrote a lette!: to the Georgia Secretary of State in which
he boldly criticized and attacked the administrative law judge
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and in which he stated that he and his client were refusing to
come to court. The day of trial, when Respondent had no events
or duties on his official public schedule, and after the
Secretary of State lladwarned him that his failure to appear
would be at his own peril, the Respondent and his lawyer
nevertheless failed to appear for court and failed to comply with
Petitioner's valid Notice to Produce. The Respondent thus not
only presented no ev·idence of his own as to his eligibility for
office, but he failEd to produce significant pieces of evidence
to which Petitioner was legally entitled.
In view of the foregoing misconduct and failings of
Respondent and his lawyer, and considering Respondent's total
disregard of the laws of this State and the judiciary thereof, it
appears that it is Respondent, and not Petitioner, who "ignore[s]
procedural and evidentiary requirements," who is "in pursuit of a
political agenda," and whose factual assertions - which he fails
to support with any evidence - are "based on fantasy."
Petitioner, far from seeking to "harass" anyone, is simply
availing himself of lawful procedures under Georgia law in order
to properly raise and have finally determined the issue of
whether Respondent, liVhose fa ther was a foreign na tiona] and never
a United States citizen, is a "natural born Citizen" eligible
under Article II of the Constitution for the Presidency of the
United States. In that regard, Petitioner contends that the
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"natural born CitiZl'~n"requirement of Article II was intended to
prevent anyone born with dual national citizenship and dual
national allegiance~3 from holding the presidency and the ultimate
command of this nat:_on's military forces. It is thus nothing
less than a matter e)fnational security that the proper meaning
and construction of the "natural born Citizen" requirement, as
set forth in Minor V. Happersett, 88 U.S. 162, 167, 22 L. Ed.
627, 21 Wall. 162 (1875), be conclusively confirmed by the
Judiciary.
I. SUBJECT-Mlli.TTER JURISDICTION
Seeking dismissal on the basis of a lack of subject-matter
jurisdiction in this Court, Respondent first argues that First
Amendment associational rights of a political party give the
party the exclusive right to determine whom to include on its
Presidential Preference Primary ballot. While Respondent
contends that First Amendment associational rights of a party are
"most often litigated" in the situation in which a party refuses
to permit a name on 3 primary ballot (citing Democratic Party of
U.S. v. Wisconsin, 58 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82
(1981); Duke v. Clel~3.nd,954 F. 2d 1526 (11th Cir. 1992)), he
also claims that "thl~ reverse is also true" in that the party has
the unchecked right:o require certain names on its primary
ballot. Respondent, however, cites no authority for the latter
proposition. Moreover, none of the cases cited by Respondent are
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authority for the c~Jnclusion that a political party's
constitutional asso(:iational rights deprive a state government of
its ability to require that candidates meet constitutional or
statutory eligibilit:y requirements for office in order to be
placed on the state ballot.
O.C.G.A. §§ 21--2-5(b) and (c) authorize the Georgia
Secretary of State, or an eligible Georgia elector, to challenge
a candidate's qualii'ications, and the Secretary of State is
thereafter empowered to determine whether the candidate is
qualified to seek ard hold office. O.C.G.A. § 21-2-5(e) gives an
elector unsuccessfully challenging a candidate's qualifications
the right to appeal the Secretary of State's decision by filing a
petition in the Superior Court of Fulton County. Given the
state's right to run its own elections, nothing pertaining to the
associational rights of the Respondent's political party deprives
this Court of subject-matter jurisdiction in this matter.
Respondent also contends, however, that O.C.G.A. § 21-2-5,
the Georgia qualifications challenge statute, does not apply to
the Presidential Preference Primary and that this Court therefore
does not have subject-matter jurisdiction. In this connection,
Respondent points out that the definition of "election" found in
O.C.G.A. § 21-2-2(5) includes general or special elections, but
not a primary or special primary unless the context in which
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"election" is used nclearly requires" the inclusion of a primary
or special primary.
Respondent overlooks, however, the provisions of O.C.G.A. §
21-2-15 inasmuch as
This chapter shall apply to any general or
special eJection in this state to fill any
federal, ::,tate,county, or municipal office,
to any general or special primary to nominate
candidates for any such office, and to any
federal, ~;tate, county, or municipal election
or primary for any other purpose whatsoever,
unless otherwise provided.
Respondent further fails to realize that the qualifications
challenge statute, (I.C.G.A. § 21-2-5, grants a right to challenge
the qualifications e,f"any candidate," regardless of the specific
type of election. Contestants in a Presidential Preference
Primary are designated as "candidates." O.C.G.A. § 21-2-193.
Respondent nevertheless argues that a "candidate" must be
"certified by the state executive committee of a political party"
or must submit "a notice of candidacy," see O.C.G.A. § 21-2-5(a),
and that neither of such conditions have taken place as to
Respondent. O.C.G.A. § 21-2-5(b) provides, however, that a
challenge of the qualifications of any candidate may be made "at
any time prior to th,:;election of such candidate," and
Respondent's political party would presumably be filing a
certification of his nomination prior to the general election.
Petitioner additiona:Lly submits that "certified" and "notice of
candidacy" are not specifically defined terms in the Georgia
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Election Code, and one could argue that the list of Presidential
Preference Primary candidates submitted by Respondent's political
party pursuant to O.C.G.A. § 21-2-193 constituted a
"certification" or 21 "notice of candidacy."
Accordingly, it:is apparent that the Georgia qualifications
challenge statute deles, in fact, apply to the Presidential
Preference Primary 2lnd that this Court does have subject-matter
jurisdiction herein.
II. SERVICE Oli' SUMMONS
Respondent alse, seeks dismissal for the reason that "service
of the summons and complaint was made by mailing to
[R]espondent's attorney." Respondent claims that personal
service or a waiver thereof was required for a viable suit.
The case of Douglas Asphalt Co. v. Georgia Public Service
Commission, 263 Ga. App. 711, 589 S.E. 2d 292 (2003) is
controlling. In DOt:,glasAsphalt, the Court held that in an
appeal of an administrative decision of a state agency or other
tribunal, personal service of the petition for judicial review
upon the agency was not required, and service by mail was proper
to preserve the jurisdiction of the court. The Court
specifically noted that service of appeals from an agency
decision is governed by O.C.G.A. § 5-3-21, which provides in
pertinent part that "[a] copy of the notice of appeal shall be
served on all parties in the same manner prescribed by Code
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Section 5-6-32." O.C.G.A. § 5-6-32(a), in turn, provides in
pertinent part that
Whenever under this article service or the
giving of any notice is required or permitted
to be made upon a party and the party is
represented by an attorney, the service shall
be made upon the attorney unless service upon
the party himself is ordered by the court.
Service of all notices and other papershereunder and service of motions for new
trial, motions in arrest, motions for
judgment notwithstanding the verdict, and all
other similar motions, orders, and
proceedins:rsmay be made by the attorney or
party fili.ng the notice or paper, in person
or by mail., and proof thereof shown by
acknowledgment of the attorney or party
served, or by certificate of the attorney,
party, or other person perfecting service.
Therefore, in the instant case, service of the Petition upon
Respondent Obama by mailing same to his attorney was in
accordance with Georgia law. Petitioner notes in passing,
however, that even if the service by mail were for any reason not
considered proper, C.C.G.A. § 5-3-2l(b) states in pertinent part
that "[f]ailure to perfect service on any party shall not work
dismissal, but the superior court shall grant continuances and
enter such other orders as may be necessary to permit a just and
expeditious determination of the appeal."
III. STATEMENT OF CLAIM AGAINST RESPONDENT
Respondent finally requests dismissal because "[t]he proper
party when challenging a decision made by the Secretary of State
is the Secretary of state." Respondent states such contention
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with no citation of authority whatsoever. Nevertheless,
Respondent goes on 1:0 claim that Petitioner's action does not
seek any relief against Respondent, but only against the
Secretary of State. Respondent further contends that there is a
lack of personal ju]~isdiction over the Secretary of State, as
"[n]o summons commands appearance by the Secretary of State in
this matter."
Beginning with the latter issue of "summons," Respondent's
legal analysis is flawed. O.C.G.A. § 21-2-5(e) makes plain that
Petitioner's Petition For Judicial Review is an appeal from the
decision of the Secretary of State; it is not an original civil
action. The only reference to service of the Petition in
O.C.G.A. § 21-2-5(e) states that "[a]s soon as possible after
service of the petit.ion, the Secretary of State shall transmit
the original or a certified copy of the entire record ...to the
reviewing court." Nowhere in this statute is "summons" required
or even mentioned.
Likewise, O.C.C;.A. § 5-3-21(b) provides in pertinent part
that" [a] copy of t:he notice of appeal shall be served on all
parties .... " Again, nowhere in the statute is "summons" required
or even mentioned.
Furthermore, in DouQlas Asphalt, 263 Ga. App. at 711-712,
the state agency wa~: served with the petition by mail, wi th no
summons at all. The Court affirmed the judgment of the superior
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court which denied -:heagency's motion to dismiss. The motion to
dismiss had been ba:3ed upon an allegation of failure to perfect
personal service.
As for his rOlE! herein, the Secretary of State is not a
proper party to thi~; petition. In this appeal, the Secretary of
State is essentially in a quasi-judicial role, akin to a lower
court. The challen~re to Respondent'~ qualifications was not
brought by the SecrE~tary of State, but by Petitioner. Petitioner
and Respondent were the named parties below, and Respondent (at
least up until trial) defended the challenge; the Secretary of
State did not defen~. the challenge in any manner. The entity
with an interest at stake in this challenge was Respondent, not
the Secretary of State.
Under these circumstances, Petitioner's challenge was not a
dispute between Petitioner and the Secretary of State (i.e. the
agency). The challenge was a dispute between Petitioner and
Respondent, and same was merely adjudicated by the Secretary of
State. The instant Petition does therefore state a claim against
Respondent.
The items of relief sought by Petitioner in the instant
action are a reversal of the Final Decision of the Secretary of
State, a finding that Respondent does not meet the Article II
"natural born Citizen" requirement for the presidency, a removal
of Respondent's name from the ballot, an order adjudging
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Respondent in conter~pt of court for his deliberate failure to
comply with Petitioner's Notice to Produce in the administrative
proceedings; and cOllditionally, a postponement of the
Presidential Preference Primary Election. Should the requested
relief be granted b~'this Court, such would be primarily granted
in the form of an order reversing the Final Decision of the
Secretary of State ~rith direction to the Secretary of State as to
the appropriate remedy to be crafted, in much the same manner
that the Court of Appeals or Supreme Court would reverse a
superior court judgn~nt with direction. The Secretary of State
simply does not neec. to be a party in order to accomplish this
Court's granting of the requested relief, and none of the
applicable statutes require the Secretary of State to be named or
considered a party.
Petitioner further notes that Respondent's citation to
Handel v. Powell, 2E:4 Ga. 550 (2008) is misplaced, as the
Secretary of State there personally brought the challenge to a
candidate's qualifications. There was no challenge filed by an
elector, as in Petitioner's instant case. Powell, the candidate,
filed the petition for judicial review, and Powell and the
Secretary of State were the only two (2) parties in both the
initial challenge and the appeal to superior court.
Petitioner again notes in passing, however, that even if the
Secretary of State were for any reason deemed to be a necessary
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party to this appea:. who had not been properly served, O.C.G.A. §
5-3-2l(b) states in pertinent part that "[f]ailure to perfect
service on any part~l shall not work dismissal, but the superior
court shall grant continuances and enter such other orders as may
be necessary to perrlit a just and expeditious determination of
the appeal."
·CONCLUSION
For the above 2lnd foregoing reasons, Petitioner respectfully
requests that Respondent's Motion to Dismiss be denied.
Respectfully s1.:bmitted,this 2nd day of March, 2012.
HATFIELD & HATFIELD, P.C.
201 Albany Avenue
P.O. Box 1361
Waycross, Georgia 31502
(912) 283-3820
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CERTIFICATE OF SERVICE
I, J. Mark Hatfield, Attorney for Petitioner, do hereby
certify that I have this day served the foregoing Petitioner's
Response to Respondent's Motion to Dismiss upon:
Mr. Michael K. Jablonski
Attorney at Law2221-D Peachtree Road NE
Atlanta, Georgia 30309
Honorable Brian P. Kemp
Secretary of State
State of Georgia
214 State Capitol
Atlanta, Georgia 30334
by placing a copy of same in the United States Mail in a properly
addressed envelope "ith sufficient postage affixed thereto in
order to insure proper delivery, and by emailing same to Mr.
Jablons ki at michae::~.'[email protected] and by emailing same
to Secretary Kemp at [email protected].
This 2nd day of March, 2012.
HATFIELD & HATFIELD, P.C.
201 Albany AvenueP.O. Box 1361
Waycross, Georgia 3I502
(912) 283-3820
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r age; I VI I
Mark Hatfield
From: Mark Hatfield [email protected]]
Sent: Friday, March 02, 2012 6:52 AM
To: elizabeth. [email protected]
Cc: michael.jablonski@c:omcast.net;[email protected]
Subject: ** Court Filing ** Powell v. Obama / Fulton Superior CAFN: 2012CV211528
Attachments: powellkr1res.pdf
Please see attached Petitioner's Re:3ponseto Respondent's Motion to Dismiss. As per the Court'spermission, please accept this Response as filed with the Court today. I am forwarding the original to theClerk for filing by UPS overnight mail to arrive Monday.
J. Mark Hatfield, Esq.Hatfield & Hatfield, P.C.
201 Albany AvenueP.O. Box 1361
Waycross, Georgia 31502(912) 283-3820
(912) 283-3819 [email protected]
CONFIDENTIALITY NOTICE: This; e-mail transmission and the attachments accompanying itcontain information from the lawl)ffice of Hatfield & Hatfield, P.C. which is protected by theattorney-client communication priivilege or the work product privilege. The information isintended only for the use of the irltended recipient. If you are not the intended recipient, be awarethat any disclosure, copying, distlribution, or use of the contents of this transmission isprohibited. If you have received this transmission in error, please promptly notify the sender byreply e-mail and then destroy all (::opiesof the transmission.
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ragt: 1 Ul .)
Mark Hatfield
To;
Sent:
From:
Cc:Subject:
Baum, Elizabeth [[email protected]]
Friday, March 02, 201'2 8:30 AM
[email protected]; codyjudy@hotmai/.com; [email protected]; Russo,
Vincent; David Farrar; [email protected]; [email protected]
White, ConnieRE: Farrar, et a!. v. Obama, et a!.: 2012CV211398; Welden v. Obama: 2012CV211537, Swenssonv. Obama: 2012CV211527, Powell v. Obama: 2012CV211528
Importance: High
Counsel/Parties:
The Court is in receipt of the courtesy copies of your Responses to Respondent Barack
Obama's Motion to Dismiss. The Court will consider same in ruling on Respondent's
Motion to Dismiss. The Court intends to issue that ruling today. Again, please note that the
Order will be entered before your responses are officially filed of record with the Clerk of
Court. I assume all responses will be promptly mailed or delivered to the Clerk for filing
purposes.
Thank you for submitting these Responses to us within the timeframe articulated and for
doing so by email as requested.
Elizabeth Baum
Staff Attorney to the Honorablle Cynthia D. WrightChief Judge, Superior Court of Fulton County
136 Pryor Street, SW, Suite C92 7
Atlanta, GA 30303
Phone: (404) 613-4187
Fax: (404) 893-6610elizabeth. ba um({7)fultoncoun tvga"go\'
From: Baum, Elizabeth
Sent: Thursday, March 01, 2012 10:32 AMTo: '[email protected]'; coc:[email protected]; [email protected]; Russo,
Vincent; David Farrar; [email protected]; [email protected]
Subject: RE: Farrar, et al. v. Obama, et al.: 2012CV211398; Welden v. Obama: 2012CV211537,Swensson v. Obama: 2012CV21152'j', Powell v. Obama: 2012CV211528
Importance: High
In light of these circumstances, [he Court will consider a copy of your response submitted
by email or fax. Please submit il:by email (even if you fax it, as well) as, occasionally, faxes
do not go through, and I want to ensure we receive it. You may send your original response
to the Clerk tomorrow with the understanding that the Court may issue its ruling on the
Motion to Dismiss before your original response is actually filed with the Clerk.
All parties/counsel may proceed in this manner.
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rag\:: LUl)
Thank you,
Elizabeth Baum
Staff Attorney to the Honorab:le Cynthia D. WrightChief Judge, Superior Court ofFlllton County136 Pryor Street, SW, Suite C927
Atlanta, GA 30303
Phone: (404) 613-4187
Fax: (404) 893-6610
eli zabeth. ba \Ull (a! tlll toncoun tyga: g'o\'
From: J. Mark Hatfield [mailto:mha1;[email protected]]
Sent: Thursday, March 01, 2012 1025 AM
To: Saum, Elizabeth; [email protected]; [email protected]; Russo, Vincent; David Farrar;
[email protected]!; cale:@sos.qa.qov
Subject: Re: Farrar, et al. v. Obama, et al.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson v.Obama: 2012CV211527, Powell v. Obama: 2012CV211S28
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 Atlzmta 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 resp0ll:';es to UPS in time for overnight delivery.
Thus, I would respectfully request that the Court accept my responses for Plaintiffs Swensson andPowell as filed with the Court by email (or fax) with the hard copy being delivered to the Clerk aftertomorrow's deadline.
I appreciate the Court's consideraljon of this request.
J. Mark Hatfield
"Sent from my Verizon Wireless BlackBerry"
From: "Baum, Elizabeth" <Elizabeth.Ballm0ifultoncollntvga.gov>
Date: Thu, 1 Mar 201209:31 :37,·0500
To: codyi lldv@,hotmail.com<codvjudy(([1,hotmail.com>;
michad. iablonski(a),comcast.net<michael. [email protected]>; Russo,
Vincent<vrusso(evsos. ga.gOY>;David Farrar<david. is.farrarra~gmail.com>;
111hatf!eId((i)wayxcabIe.com<mhatfield(lvwayxcab Ie.com>;van(QJ.liertv Iegalfoundation.org<:vanrCi}libertvlegalfoundation. org>; cale{{V,sos.a.gov<cale@sos.,Qa.gov>Subject: Farrar, et a1.v. Obama, et a1.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson
v. Obama: 2012CV211527, Powell v. Obama: 2012CV211528
Respondent Barack Obama filed a Motion to Dismiss in each of the above matters on February 27.
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J. a!:,,,,, J vJ. J
2012. Ifyou wish to file a response to the Motion to Dismiss, Counsel/Parties are hereby given
until tomorrow morning, Friday. March. 2. 2012 at 9:30 a.m. to do so. The Court is shortening
the time period for response due to the time-sensitive nature of certain of your allegations.
The Court will issue its ruling on the Motion to Dismiss as soon as possible.
Thank you,
Elizabeth Baum
Staff Attorney to the Honorable Cynthia D. Wright
Chief Judge, Superior Court of Fulton County
136 Pryor Street, SW, Suite C9~~7Atlanta, GA 30303
Phone: (404) 613-4187
Fax: (404) 893-6610
elizabeth. baum((7J,fuloneo untvga. gO\"
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Dear Secretary Kemp:
Re: Georgia Presidential Preference Primary Hearings
For these reasons, and 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.
260 Brighton Road, NE
Atlanta, Georgia 30309
404.290.2977
815.846.0719 (fax)m icha eI.jab Ions [email protected]
via email to Vincent R. Russo Jr.. Esq.
Michael JablonskiAtto rney-at -law
January 25, 2012
Hon. Brian P. Kemp
Georgia Secretary of State:
214 State Capitol
Atlanta, Georgia 30334
PLAINTIFF'S
EXHIBIT"~
Nonetheless, the Administrative Law Judge has exercised no control whatsoever
over this proceeding, and it threatens to degenerate into a pure forum for political
posturing to the detriment (Ifthe reputation of the State and your Office. Rather than
bring this matter to a rapid ,wnclusion, the ALJ has insisted on agreeing to a day of
hearings, and on the full pmticipation 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.
This is to advise yo u 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 orrun 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 proceli~dingsaround the country, all of which have concluded that
they were baseless and, in wme instances - including in the State of Georgia - that those
bringing the challenges have engaged in sanctionable abuse of our legal process.
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It is well establishecl.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 bis website. "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 thecountry. Even if a state wel~eto 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 another 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 Urlited States Constitution." Maskell, "Qualifications for
President and the "Natural Born" Citizenship Eligibility Requirement, " Congressional
Research Service (November 14, 2011), pAl.
Nonetheless, the ALJ has decided, for whatever reason, to lend assistance through
his office--and by extension, yours-to the political and legally groundless tactics of the
plaintiffs. One of the attomeys for the plaintiffs has downloaded form subpoenas whichshe tried to serve around thl~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 #106~lilfor Barack Obama, II, issued 08.08.1961 by Dr. David
Sinclair ...," even though Hawaii courts had dismissed with prejudice the last attempt toforce release of confidential records on November 9, 2011. Taitz v. Fuddy, CA No. 11-11731-08 RAN.
In Rhodes v.McDonald, 670 F. Supp. 2d 1363, 1365 (USDC MD GA, 2009),
Judge Clay Land wrote this of plaintiff's attorney:
When a lawyer files 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 lawyerabuses herprivilege topractice law....
As a national leader in the so-called 'birther movement.' Plaintiff's
counsel has attempted to use litigation toprovide the 'legalfoundation'
for her political agmda. 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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certificate' that is satisfactory to herself and her followers:~ 670 F.Supp. 2d at 1366.
All issues were pres,ented to your hearing officer-the clear-cut decision to be on
the merits~ and the flagrantly unethical and unprofessional conduct of counsel-and hehas 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 of his office-that it address
constitutional issues-is by law not within its authority. See, for example, Flint River
Mills v. Henry, 234 Ga. 385, 216 S.E.2d 895 (1975); Ga. Compo R. & Regs. r. 616-1-2
.22(3).
The Secretary of StlJlteshould withdraw the hearing request as being
improvidently issued. A rellerring agency may withdraw the request at any time. Ga.
Compo R. & Regs. r. 616-1-2-.17(1). Indeed, regardless of the collapse of proceedings
before the ALJ~ 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), reconsiderationdenied, No. S09A1373. ("The
Secretary of State of Georgiia is not given any authority that is discretionary nor any that
is mandatory to refuse to aillow 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 preJlerence 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 taking the requested action, and as we do so, we will, of course,
suspend further participation in these proceedings, including the hearing scheduled for
January 26.
Very truly yours,
L:Ju : J,.a /J(/~t
MICHAEL JABLONSKI
Georgia State Bar ]~umber 385850
Attorney for President Barack Obama
cc: Hon. Michael Malihi (c/o Kim Beal ([email protected]))
Van Irion, Esq. ([email protected])
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