IN THE SUPREME COURT STATE OF GEORGIA KEVIN RICHARD Applicant V. BARACK OBAMA, POWELl.

* * *
*

Respondent

APPLICATION

Th e
J.

Fo
FOR DISCRETIONARY APPEAL

ds

Fr

ien

of
MARK HATFIELD HATFIELD & HATFIELD, P.C. Attorney for Applicant 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820 Georgia Bar No. 337509 mhatfield@wayxcable.com

gB

CASE NO.

ow .

co m

IN THE SUPREME COURT STATE OF GEORGIA KEVIN RICHARD Applicant V. BARACK OBAMA, POWELJi.,

*
*

CASE NO.

Respondent

Now comes Appl:_cant Kevin Richard undersigned pursuant counsel., and respectfully

of Th eF og Bo
*
APPLICATION FOR DISCRETIONARY applies to O.C.G.A.

Powell, by and through to this Court for leave to

5-6-35(a) (1) and 21-2-5(e) from the Superior

file a discretionar~T appeal County's

"Order GraIlting Respondent which was entered

Barack Obama's Motion

w.
APPEAL Court of Fulton to a Final of Respondent Barack Obama primary election. "Order to Dismiss"; Review" as Exhibit filed by Page -1-

Dismiss,"

and filed on March 2, 2012, in

Applicant's Decision

Fulton ~;uperior Court action appealing Secretary

of Georgia

of State Brian P. Kemp denying

Applicant's Obama,

challencJe to the qualifications

a presidentiill candidate, of the~ United

to seek and hold the Office of

the President eligible

ds

States, and finding Respondent

as a candiejate for the presidential respectfully a'3 Exhibit

ien

Applicant

shows to the Court that he is

nAn

attaching

hereto:

a copy of the aforesaid

Granting
nBn

Respondent

Barack Obama's Motion

Fr

a copy of the "::>etitionFor Judicial

co m

Applicant

in the Superior
"C'I

Court of Fulton County on February "Motion

2012; as Exhibit

a copy of Applicant's

Review or, Alternat~_vely, For Stay of Decision State and For Postpc)nement of Presidential Election" Respondent Support

filed on ~~ebruary 22, 2012; as Exhibit Barack Obama's "Motion to Dismiss"

thereof

served on February "Response

copy of Applicant's submitted

to Respondent's

to and acc:epted by the Superior

as per the Court's

I)ermission and instructions,

og
PART ONE

Exhibit

"F" a copy of a letter dated January attorn(~y to Secretary

eF

2, 2012 and thereaf-~er stamped as filed on March

Respondent's

Th

STATEMENT

OF THE CASE For

1.

TYPE OF Q~SE. Appea.

This case is an Application to O.C.G.A.

of

Discretionary 2-5(e)

pursuant

for leave to appeal

from the Order of the Superior "Petition Secretary

Review"

ds

of Fulton County di:3missing Applicant's of a Final :)ecision of Georgia challenge

P. Kemp denying Applicant's

ien

Respondent Office

Obama,

a presidential

of the Presi(lent of the United

Fr

Respondent

Obama el.Lgible as a candidate

primary

election. Page -2-

Bo w. co
of Secretary Preference and Brief in 27, 2012; as Exhibit Motion 25, 2012 from of State Brian P. Kemp. to the qualifications candidate, States, and finding for the presidential

"0" a copy of

Court of Fulton County, by email on March 5, 2012; and as

5-6-35 (a) (1) and 21Court

For Judicial of State Brian of

to seek and hold the

m
of Primary "E" a

15,

For Expedited

to Dismiss"

2.

SUPREME COURT JURISDICTION. to entErtain

The Supreme pursuant

Court has

jurisdiction

this Application

5-6-35(a) (1) and 21-2-5(e), Constitution Paragraph

as well as pursuant Article

of the State of Georgia,

II, as this case draws into question of O.C.G.A.

constitutionality Preference

21-2-5 as applied

Primarie~:, and as this case involves borr Citizen" presidential

of the ~natural requirement

of Article

II, Section

og
On or before pursuant

States Constitution, exclusive 3. appellate

and this case thus falls within

JUDGMENT 1l,PPEALEDAND DATE OF ENTRY. ~Order Granting was entered

eF

jurisdiction.

Court of Fulton County's Obama's Motion 2012. 4. Respondent Committee

Th
to Dismiss" OF FACTS. Democratic on Nov2mber

STATEMENT

of

Barack Obama submitted

of the Dem0cratic

Party of Georgia

on the Georgia Consequently,

ds

Presidential

1, 2011, Georgia

ien

Chairman

Mike Berlon

submitted,

the name of Respondent as a candidat2

Obama to the Georgia

Office

to be listed on the Georgia Primary Ballot.

Fr

Presidential

Prefere~ce

Bo w. co
the eligibility I, Clause 5 of the United The Superior Barack Respondent and filed on March 2, October 31, 2011, a letter to the Executive Preference Democratic Party to O.C.G.A. Secretary

to the 1983

VI, Section VI,

to Presidential

the construction

seeking to be listed Primary Ballot.

Democratic

m
to O.C.G.A. this Court's

21-2-193,

of State's

Page -3-

Thereafter, Powell,

pursuant

to O.C.G.A. County,

21-2-5(b),

a residentJf

Gwinnett

Georgia

voter in the State ()f Georgia candidates

and an elector

eligible

for the IJresidency of the United States, timely Sec:retary of State a written challenge

w.
contended to an "OSAH"). pertaining counsel

with the Georgia qualifications Presidency Respondent requirement

of REspondent

to seek and hold the Office of the Applicant that

of the U~ited

States.

does not meet the "natural born Citizen" of Article II, Section

Bo
I, Clause challenge by Applicant

og

21-2-5(b), Applicant's (hereinafter However,

5 of the United

States Constitution. As prescribed Secretary

of State referred law judge

administrative

eF
(hereinafter evidence appear attorney

b'{ O.C.G.A.

the Office of the

"ALJ") of the Office

State Administrative pursuant hearing to proper on January

Th

Hearings

notice

to all parties,

the ALJ conducted

26, 2012.

Applicant record,

of

was pr"esent at trial and submitted coun~el, and testimony

through

issues raised by his challenge. served with a Notice Respondent

ds

despite being timely requiring

to Produce by Applicant's

Fr ien

to personally

for trial and to bring with him at trial,

certain documents

for use as evidence

Respondent

failed to appear

for trial on January

Likewise,

Respondent's

also failed to appear for trial.

co m
Applicant and a registered filed to the eligibility of Thereafter, a into the 26, 2012. Page -4-

to vote for

to the

No evidence

or testimony

whatsoever

was introduced at trial.

record by or on beh~lf Respondent

of Respondent to appear

and his attorney

for trial on January 26,

2012 was knowing

and intentional,

as demonstrated attorney

25, 2012 letter written Secretary

by Respondent's

of State Erian P. Kemp evidence

(Exhibit "F").

father, Barack Hussein of Great Britain. Respondent's citizen

Obama, was born in Kenya and was a subject Applicant established that

Additionally,

aforesaid

father, Barack Hussein

Fo
eligible Pursuant Decision appealing

gB

Applicant's

at trial established

of the United

States as of the date of birth of

Nevertheless, Decision

finding Res?ondent primary

Th e
election. was reported

Respondent

in 1961 or at any other time whatsoever.

00 February 3, 2012, the ALJ issued an initial

as a candidate to O.C.G.A. for the

presidential the ALJ's

Decision

to the Secretary

of

Subsequently

on FebrJary Secretary

7, 2012, pursuant

ow .

to O.C.G.A.

5(c), Georgia Decision

of State Brian P. Kemp issued a Final of the ALJ and denying

ds

adopting

th,~ initial

Applicant' s challengl~.

ien

On February

15, 2012, pursuant

to O.C.G.A.

Applicant

timely

fil(:;d in the Superior

Court of Fulton County a and seeking judicial (Exhibit "B")

"Peti tion For Judicia.l Review"

Fr

review of the Secretilry of State's

Final Decision

co m
into the The failure of by a January to Georgia that Respondent's Obama, was not a 21-2-5(b), of State.

21-2-

21-2-5(e),

Page -5-

Applicant's expedited Georgia

Petition

also requested

that the Court grant an

hearing

ani review of the case due to the fact that the Preference Primary Election was scheduled 6, 2012. to In of

Presidential

take place less than three

(3) weeks later, on March

a further effort to Jbtain some action by the Court in advance the election "Motion Decision date, AJplicant then filed, on February

For Expedite,j Review or, Alternatively, of Secretary

of State and For Postponement Primary Election"

Presidential

Prefere~ce

On February

27, 2012, counsel

og
thereafter

Respondent

argued th.3t the Court lacked jurisdiction

eF

"Motion to Dismiss"

.3nd Brief in Support thereof

subject matter;

that there was a failure of service of process;

and that Applicant's

relief could be granted On March

1, 201.2, the Court notified

Th
Petition for Applicant

failed to state a claim upon which

(Exhibit "0"). counsel for Applicant

by email that, if ApJlicant "Motion mornlng, 16-17). to Dismiss,"

of

wished to respond

counsel would have until the following

ds

March 2, 2012 at 9:30 a.m., to do so (Exhibit "E," pp. Counsel submitted to the Court,

ien

by the aforesaid

dea,iline, Applicant's

Motion

to Dismiss"

(~xhibit "E," p. 14), and the Court of same in an email sent at 8:30 a.m. on the (Exhibit "E," p. 15). Just over two and

acknowledged

receipt

Fr

morning

of March 2, 2012

Bo w. co
For Stay of of (Exhibit "C") served a in which over the for Respondent to Respondent's "Response

to Respondent's

m
22, 2012, a Page -6-

one-half

(2~) hours later, the Court emailed Respondent

its file-stamped to Dismiss"

"Order Granting (Exhibit "A,"

Barack Obama's Motion

pp. 1-2).
PART TWO ENUMERATION OF ERRORS

w.
to the
O.C.G.A.

1.

The Superior

Court erred in holding

2-5 does not apply in the context qualifications Primary.

2.

of Th eF og Bo
of a challenge of a candidate in the Presidential The Superior Court erred in holding to a challenge as applied in the Presidential Preference The Superior Court erred in holding and in dismissing sErvice of failure to perfect The Superior of the Secretary of the burden The Superior of tte Secretary of State's errors was born in the United

unconstitutional of a candidate
3.

to the qualifications Primary.

failed to perfect

Applicant's

based upon a finding 4.

service.

Court erred in failing to reverse the of State on the basis of the

Final Decision ALJ's

and the Secretary

of State's errors in failing to determine of proof and in failing to challenge.

apply such determin2tion

5.

ds

the proper placement

in ruling upon Applicant's

Court erred in failing to reverse the of State on the basis of the in finding as "fact"

ien

Final Decision

ALJ's and the Secretary that Respondent

States and that

Fr

co m
that O.C.G.A.

21-

Preference

21-2-5

that Applicant action

Page -7-

Respondent's

mother

was a citizen of the United birth.

States at the

time of Respondent's
6.

The Superior

Court erred in failing to reverse the of State on the basis of the error in finding that born Citizen"

Final Decision

of tte Secretary

ALJ's and the Secretary Respondent Article qualifies

of State's

as a "natural

II of the United

States Constitution,

that Respondent's

father was not a United birth.

time of Respondent's

ARGm!IENT AND CITATION

Applicant 34, concerning provides

would note at the outset that this Court's the standard

Fo
PART THREE

gB

he

for granting

in pertinent

part that "[a]n application [pursuant to] O.C.G.A.

granted,"

of T

appeal a final judgment

among other instances,

when " [r]eversible

to exist" or when "[t]he establishment desirable."

ien ds

In the instant

case, as set forth hereinbelow,

Court, as well as the ALJ and the Secretary of reversible errors. Additionally,

number

significant

issues regarding

the State of Georgia's

ow .co
pursuant to despite
OF AUTHORITY

States citizen at the

discretionary

for leave to 5-6-35 shall be error appears is

of a precedent

of State, made a as this case raises authority and as to

screen the qualifications

of presidential capable

contenders,

these issues are certainly

of being raised with regard to

Fr

m
the fact Rule appeals, the Superior
Page -8-

future presidential IS both necessary 1.

candidacies, and desirable.

the establishment

The Superior

Court erred in holding

Bo w. co
that O.C.G.A. to the Preference

2-5 does not apply in the context of a challenge qualifications Primary. The Superior qualifications Presidential of a candidate

in the Presidential

Court held that a.C.G.A.

21-2-5, the Georgia

chal~_enge statute, PreferE:nce Primary, delegates,

does not apply to the

og
general requires" inasmuch

as the Presidential

Primary apportions nomination

but does not result

in the The Court for the

or election

eF

of a presidential

candidate.

also found that Res:pondent is not yet a "candidate"

Primary Election

is not an "E!lection" within the meaning Code. In this connection, Respondent

Th

Presidential

Electic1n, and that the Presidential

Preference of the Georgia

contended

a.C.G.A.

of

the Superior

Court t.hat the definition includes

of "election"

21-2-2(5)

or special elections, in which

not a primary "election"

or special primary

unless the context the inclusion

ds

is used ~clearly

or special primary.

ien

The Superior

Court and Respondent

overlooked, as

however,

provisions

of a.C.G.A.

21-2-15

Fr

This chapter shall apply to any general or special el.ection in this state to fill any federal, ~tate, county, or municipal office,

Preference before found in but of a primary the

of a precedent

21-

Page -9-

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 5, grants a right t() challenge candidate," the Superior Presidential statute,

regardl(~ss of the specific

Court'~3 finding to the contrary, Preference

Primary are specifically O.C.G.A.

statute as "candidates." Respondent

alscl argued in the Court below that a "candidate"

political O.C.G.A.

party"

or must submit "a notice of candidacy," and that neither O.C.G.A. of such conditions

he F

must be "certified

by the state executive

2l-2-5(a),

taken place as to Respondent. however,

of T

that a challenge

of the qualifications

may be made "at any time prior to the election candidate," and Resrondent's political

filing a certification election. "notice Georgia

of his nomination Applicant

ds

Addition~lly,

of candidacy"

are not specifically

ien

Election

Code, and one could argue that the list of Primary candidates party pursuant submitted by 21-2-193

Presidential

Preference political

Respondent's constituted

Fr

a "certification"

og Bo w. co m
O.C.G.A.

21-2-

the qualifications

of "any

type of election.

Despite

contestants

in a by

designated

21-2-193.

committee

of a

see have

21-2-5 (b) provides, of any candidate of such be

party would presumably prior to the general

submits that "certified" defined

and

terms in the

to O.C.G.A.

or a "notice of candidacy."

Page -10-

Accordingly, challenge Preference

it is apparent

that the Georgia

qualifications

statute dces, in fact, apply to the Presidential Primary; that the Superior Court did properly Petition;

subject-matter Superior 2.

juri~:diction of Applicant's reversible

Court committed The Superior

Court erred in holding to a challenge

unconstitutional of a candidate

as applied

in tbe Presidential

The Superior subject~matter First

Ccurt also granted dismissal

og
adopted

jurisdiction

based upon Respondent's associational

Bo w. co
error in holding O.C.G.A.

to the qualifications Primary.

Preference

for lack of argument that

(and Fourteenth)

eF
Amendment contended

rights of a right to determine Primary ballot.

political

party give the party the exclusive on its Presidential

whom to include

Preference

While Respondert associational situation ballot

Th

that First Amendment in the

rights of a party are "most often litigated" to permit

in which a party refuses

a name on a primary 50 U.S. Cleland,

of

(citing Democratic

Part V of u.S.

v. Wisconsin,

107, 101 S.

Ct. 101C, 67 L.

Ed. 2d 82 (1981); Duke v.

954 F. 2d 1526 reverse

ds

(lltt Cir. 1992)), he also claimed that "the right

is also true" in that the party has the unchecked certain rames on its primary ballot.

ien

to require

Respondent,

however,

cited no a~thority

for the latter proposition. Respondent's of State may not

The Superior

Court essentially

Fr

argument,

as the Co~rt held that the Secretary

m
have and that the otherwise.

21-2-5

Page -11-

interfere

with a political

party's

determination

candidates, presidential

and the Secretary's elector"s. However,

authority

none of the cases or statutes are authority for

cited by the Superic1r Court or by Respondent the conclusion associational require that a political right~ deprive party's

that candidates requiren~nts

meet constitutional

eligibility

for office in order to be placed

gB

21-2-5(b)

a state government

ow .co
of its constitutional or statutory and Georgia and the Secretary whether O.C.G.A.

is limited to examining

of its ability

state ballot.

Fo

In point of fac:t, O.C.G.A. the Georgia to challenge Secretary

(c) authorize elector, of

a candidate's

State is thereafter is qualified an elector

he

of State, or an eligible qualifications, to determine

empowered

the candidate 21-2-5(e) gives

of T

to see~: and hold office. challenging

unsucces~fully

a candidate's of State's

qualifications decision County.

the r"ight to appeal the Secretary

2"

by filing

petition

in the Superior

Court of Fulton

ds

Given the ~tate's

right to run its own elections, rights of the Court of

nothing pertaining

to the associational

ien

Respondent's

politic:al party deprived

the Superior

subject-matter Superior

juriE:diction over Applicant's

case, and the

Court comm~ptted error in holding

otherwise.

Fr

m
to on the Page -12-

3. failed

The Superior to perfect

Court erred in holding

service and in dismissing to perfect

based upon a finding- of failure The Superior properly Applicant

Court also ruled that, even if the Court pursuant to O.C.G.A. personal

had jurisdiction "failed entirely

to perfect by O.C.G.A.

9-11-4.

of Th eF og B
The Superior Court apparently of the summons and complaint attorney." Respondent claimed thereof was required the case of Douqlas Asphalt In Douqlas Asphalt, decision personal ~;ervice of the petition the jurisdiction of the court. noted that service of appeals is governec. by O.C.G.A.

Respondent(s)

as required

to be subject to dismissal that "service

for the reason argued by Respondent was made by mailing that personal suit. Public to

[R]espondent's

service or a waiver However,

Service Commission, controlling.

263 Ga. App. 711, 589 S.E. 2d 292

the Court held that in an of a state agency or other for judicial review

appeal of an administrative tribunal,

upon the agency was not required, to preserve

and service by mail was proper The Court from an agency In

specifically decision

ds

Fr ien

5-3-21, which provides of appeal

pertinent

part that "[a] copy of the notice

served on all partiE~s in the same manner

ow .co m
that Applicant Applicant's action service.

21-2-5,

serVlce upon

21-2-5(e)

and O.C.G.A.

believed

Applicant's

case

for a viable Co. v.

Georqia

(2003) lS

shall be

prescribed

by Code

Page -13-

Section

5-6-32."

O.C.G.A.

5-6-32(a),

in turn, provides

pertinent

part that

Therefore, Respondent accordance

in the instant

Fo
law.

Whenever under this article service or the giving of any notice is required or permitted to be made upon a party and the party is represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service of all notices and other papers hereunder and service of motions for new trial, motions in arrest, motions for judgment notwithstanding the verdict, and all other 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.

gB

case, service of the Petition was in

ow .co
upon that even if the service valid, O.C.G.A. to perfect

Obama by mailing with Georgia

Applicant

of T

further notes, however,

he

same to his attorney

by mail were for any reason not considered 2l(b) states in pertinent

part that "[f]ailure

on any party shall rot work dismissal, shall grant continuances necessary appeal." to permit Dismissal

but the superior

ds

and enter such other orders as may be determination of the

a just and expeditious

ien

based upon the issue of service was therefore Court erred to the extent that service.

inappropriate, its dismissal

and the Superior

was bcsed upon failure to perfect

Fr

m
In

5-3-

service

court

Page -14-

4.

The Superior Court erred in failing

Final Decision of the Secretary of State on the basis of the ALJ's and the Secret,ary of State's errors in failing

the proper placement, of the burden of proof and in failing

w.
For Judicial of proof."

apply such determina,tion in ruling upon Applicant's challenge.

In dismissing Superior

of Th eF og Bo
Applicant's Petition Court failed to address the parties, 19, 2012, Applicant of Placement to Havnes v. Wells, (2C:00), requiring Respondent his eligibility for office. motion in advance but tt.e judge never even addressed provides not appl~_cable herein,
2111

the ALJ's complete

make a determinatior, as to the proper placement proof as between

as well as the ALJ's

apply the burden On January Determination

of proof to his factual and legal conclusions. filed a "Motion For

of Burden of Proof" in which he sought 273 Ga. 106, 108-109, to affirmatively 538

an order, pursuant S.E. 2d 430, 433 establish

Not only did the ALJ not

rule on Applicant's by Applicant, motion

of trial, as was requested or resolved the

in his final ruling.

ds

OSAH Rule 616-~-2-.07(1)

that, with certain shall bear the

exceptions burden

"[t]he agency Further,

ien

of proof in

matters."

OSAH Rule 616-1-2of the hearing,

.07(2) states that, "[p]rior

to the commencement

the Administrative requires

Law Judge may determine placement

that law or justice

Fr

a different

of the burden

co m
to reverse the to
Review, failure to of the burden failure to

to determine

the

of

Page -15-

The challenge initiated of State. pursuant

to Respondent's agency,

qualifications

by the applicable Rather,

the Office of the Secretary by Applicant,

the challenge

was commenced

to O.C.G.A.

21-2-5(b),

"by filing a written

with the Secretary challenge, procedure, challenge

of State .... "

Upon the filing of Applicant's

Bo

21-2-5(b),
(i.e.,

the Secretary also pursuant

of State was required to O.C.G.A.

w.

to the OSAH for a hearing.

Prior to the trial before Office of the Secretary candidate qualifications;

og
The burden
(i.e.,

the ALJ, the "agency,"

of State, made no determination issued no decision;

to the challenge,

and it would have therefore

eF

for the agency to bear the burden by OSAH Rule 616-1-2-.07(1). have been placed ineligible) However,

of proof as initially

Th

of proof therefore

either with Applicant

or with Respondent

to prove himself

of

under HavnE~,

273 Ga. at 108-109, Applicant "to disprove

required, regarding

and should not be required, [Respondent Obama's]

ds

eligibility

to run for office .... "

rd.

Fr ien

The significance

of the ALJ's apparent.

failure to rule on the burden Respondent and his lawyer and such

of proof is immediately

failed to attend trj.al and failed to offer any evidence, were intent:ional, as shown by Respondent's

failures

co m
complaint as a matter of to refer the i.e. the of been inappropriate must eligible) was not anything counsel's

herein was not

and was not a party

suggested

to prove Respondent

Page -16-

letter of January Applicant Respondent

25, 2012

(Exhibit ~F").

If Respondent

contends,

bear the burden

of proof at trial, then

can in no way be said to have satisfied was entitled to judgment.

and Applicant Superior

Court to reverse the Secretary

the basis of their failure to address the burden reversible 5. error. The Superior

Court erred in failing

gB
for office. and inasmuch

ow .
to reverse States and that the Secretary of the United Respondent Inasmuch

Thus, the failure of the

of State, and the ALJ, on of proof is

Final Decision ALJ's and the

of the Secretary

of State on the basis of the in finding as "fact"

Secre1:~ary

that Respondent Respondent's

was born in the United

time of Respondent' ~:~irth. b The ALJ's

rulirlg, and consequently challenge

he

mother

was a citizen

Fo

of State's errors

of the United

ruling, on Applicant's relied upon certain ~considered." Respondent Respondent

of T

to Respondent's

alleged

~facts" which the ALJ said he 1) that

Spec:Lfically, the ALJ found as ~fact":

Obama was born in the United Obama's rnother was a citizen

States; and 2) that States at

the time of Respond':;nt' birth. s

ien

ds

However,

as se: forth hereinabove, his eligibility

burden

of proving

Respondent

and his ~ttorney

did not appear

for trial and did not as the ~natural born

Fr

offer any evidence

whatsoever,

co m
his burden, the States at the of State's qualifications carried the as

did, as

Page -17-

Citizen"

requirement

for presidential

eligibility

mandates

examination

of Respondent's parents

place of birth and the citizenship at the time of Respondent's Respondent birth

w. co
The Superior error.

both of Respondent's (as is explained burden

hereinbelow),

failed to carry his

of proof as to his eligibility,

and the above ~facts"

failure to reverse

the Secretary

regard to these findings

of ~fact" is reversible

6.

The Superi.or Court erred in failing

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

Article II of the United States Constitution,

fT he

Respondent qualifies: as a "natural born Citizen" pursuant to despite the fact at the

that Respondent's fc:Lther was not a United States citizen time of Respondent'B birth.
The ALJ's was grounded

(and subsequently

Fo

gB o
the Secretary in Ankenv a United by Respondent Respondent's

found by the ALJ were legally unsupported.

of State, and the ALJ, with

to reverse the

of State's)

so

in the ALJ's adoption

of the non-binding

of the Indiana Court of Appeals 916 N.E. person

v. Governor of Indiana,
finding that a

2d 678 (20()9), with regard to the ALJ's as a natural born citizen

nd

qualifies

if he was born in the at birth.

United

States becau~3e he became

States citizen

Fr ie

Although,

as p()inted out hereinabove,

there was absolutely at trial to carry place of birth,

Page -18-

no evidence

whatsOe"ler submitted of proof and establish

his burden

m
an of Court's ruling reasonlng

the ALJ's

ruling that a person's confers

birth in the United

automatically pursuant

the status of "natural born Citizen" States Constitution of the applicable

to Article

II of the United statement

unfounded; is contrary

is an incorrect

to the ruling of the United

162

(1875). Minor is bindirg authority

for the proposition

Bo
United evidence birth,

Minor v. Happersett,

88 U.S. 162, 167, 22 L. Ed. 627, 21 Wall.

Article

II phrase

"ratural born Citizen" (2) parents

in the United

State~: to two

og
The Superior CONCLUSION

who were then

Because,

as Applicant's

eF
undisputed Obama's

time of the child's birth)

themselves

demonstrated, citizen

Respordent

father was not a United Respondent requirement

w.
at trial

States Supreme Court in

refers to a person born (at the

States citizens.

at the time of Respondent's

Th

meet the Article presidency,

II "natural born Citizen"

and the ALJ and the Secretary ottlerwise.

of State committed Court thus likewise

error in finding committed Secretary

ds

Fr ien

For the above ~lnd foregoing

of

reversible

error in failing to reverse the ALJ and the

of State on this issue.1

reasons, Applicant

requests

that the Supreme Court grant this Application

lThis issue will be more fully briefed by Applicant upon the granting ofthis Application For Discretionary Appeal. Page -19-

co m
States is law; and that the States does not for the respectfully For

Discretionary Superior

Appeal

and review and reverse the decision

Court in this case. submitted,

Respectfully

this 12th day of March, HATFIELD & HATFIELD,

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

Fr

ien

ds

of Th eF og B
31502 Page -20-

ow .co m
of the 2012. P.C.

CERTIFICATE

OF SERVICE for Applicant,

I,

J. Mark Hatfield,

Attorney

certify that I have this day served the foregoing Discretionary Appeal upon:
Mr.

w. co
do hereby Application affixed thereto in same to Mr. and by emailing
P.C.

by placing addressed

a copy of same in the United envelope ~rith sufficient delivery,

Fo
2012. HATFIELD

Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334

order to insure proper Jablonski

at michae~.4ablonski@comcast.net, Kemp at v:cusso@sos.qa. crO'I.

fT he

gB o
States Mail in a properly postage and by emailing same & HATFIELD,

Michael K. Jablonski Attorney at Law 2221-0 Peachtree Road NE Atlanta, Georgia 30309

to Secretary

This 12th day of March,

nd

Fr ie

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

so

31502

m
For

Mark Hatfield
From:
Sent: To:

Subject:

Attachments:

DOC006.pdf

~~.
;, ,~, ,~

Fr

ien

ds o

fT

he
PLAINTIFF'S EXHIBIT
,/J

Fo
11
\l

Hello, Please find attached Motion(s) to Dismiss Wright's office. Thank you, Connie White

a stamp filed copy of the Order Granting Respondent Barack Obama's 2012cv211398, 2012cv211527, 2012cv211528, 2012cv211537 from Judge

gB
1

DOC006.pdf KB)

(563

ow .

White, Connie [Connie.White@fultoncountyga.gov] Friday, March 02,2012 11:04 AM david. is.farrar@gmail.com; codyj udy@hotmail.com; mhatfield@wayxcable.com; van@liberty,egalfoundation.org; michael.jablonski@comcast.com; cale@sos.ga.gov; vrusso@smi.ga.gov; dpwelden@gmail.com Order Granting Respondent Barack Obama's Motion(s) to Dismiss-2012cv211398, 2012cv211~:27, 2012cv211528, 2012cv211537

co m

A
*

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA FILE NO. 2012 CIVIL ACTION

* ROTH, LAX, CODY

co m
[
MAR 2.1011
CLERK SUPERIOR GA N COUNTY. DEPUTY

@~y(\
~
_

FILED IN OFFICE

w.
FILE NO. 2012CV211527 CIVIL ACTION * CARL SWENSSON

Ie",
~ ~

COURT

* KEVIN RICHARD POWELL,

Fr

ien

ds
Farrar; et aI. v. Obama, et al: Civil Action No. 2012CV211398 Civil Action No. 2012CV211527 Powell v. Obama: Civil Action No. 2012CV211528 Welden v. Obama: Civil Action No. 2012CV211537
Swensson v. Obama: ORDER GRANTING MOTION{S) TO DISMISS

of Th eF og Bo
* * *
*

FILE NO. 2012CV211528 CIVIL ACTION

* *

Page 1

v.

* DAVID P. WELDEN

ORDER GRANTING l:tESPONDENT BARACK OBAMA'S MOTION(S)

of Th eF og Bo
MOTION(S) TO DISMISS

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

ds

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

Fr

ien

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: Civil Action No. 2012CV211398 Swensson V. Obama: Civil Actlon No. 2012CV211527 Powell v. Obama: Civil Action No. 2012CV211528 Welden v. Oboma: Civil Action No. 2012CV211537
ORDER GRANTING

w.
TO DISM1SS Page 2

co m

FILE NO. 2012CV211537 * CIVIL ACTION

**

* *

Petitioners allege that Respondent thus, is not qualified for candidacy

Barack Obama is not a "natural born citizen"l and, 2012 Presidential Primary. Despite its

in Georgia's

gB
The Presidential

case because the challenge at issue involves the Presidential

Fo

application in the court beilow, this Court does not believe that O.c.G.A. Preference

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.

he

delegates, but neither elec ts nor nominates candidates for the Presidency.

because the Presidential Preference Primary is not an "election" within the meaning of a.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

ds

vote on "presidential

Office of President of the United States. O.C.G.A. 21-2-172.

of T

Respondent Barack Obama is not yet a "candidate" for the Presidential

electors," rather than voting directly for a candidate, when voting for the The political parties' candidates

for President are determined by convention of the political party. See O.C.G.A. 21-2-191 to

Fr

ien

I Petitioners claim is based, in pa:i, on a contention that at the time of his birth, Respondent's father was not a citizen ofthe United States.

Farrar, et al. v. Ohama, et al: Civil Action No. 2012CV211398 Swensson v. Ohama: Civil Action No. 2012CV211527 Powell v. abama: Civil Action No. 2012CV211528 Welden v. Ohama: Civil Action No. 2012CV211537
ORDER GRANTING MOTIONI:S) TO DISMISS

ow .co
21-2-5 applies in this
Primary, which by its Preference Primary apportions Therefore, because election in question and
Page 3

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 the record.

21-2-200.

In the case of a democratic candidate for President, the Democratic Party of Georgia

has the sale discretion to detennine the qualifications of potential candidates and the name( s) to be included on its Presidential Preference Primary ballot. O.C.G.A. 21-2-193;

Cleland, 954 F.2d 1523 (] lth Cir. 1992); Duke v. Cleland, 884 F. Supp. 511, 515-16 (N.D. Ga. 1995).

The Secretary of State is prohibited by the Fourteenth Amendment Constitution and Georgi;;1 statutory law from infringing

O.c.G.A.

Even if the Secretary of State believes that a challenger's

may not interfere with a po litical party's internal decision-making.

Based upon Georgi a law and governing precedent, the Court finds it has no authority to exercise jurisdiction over the Democratic Preference Party of Georgia's selection of the names(s) to be the qualifications of those

included in the Presidental

of Th eF og B
Primary or to examine the Court with appellate jurisdiction IT IS HEREBY ORDERED

Democratic Party of Georgia and is limited in its authority to examining presidential

21-2-172 to 21-2-200; Duke v. Cleland, 884 F. Supp. at 515-16 (N.D. Ga. 1995). claims are valid, the Secretary of State Id.

individuals. Therefore, thei::e actions should be DISMISSED 11-12(b).

Additionally,

even iif the Court had determined that O.C.G.A. 21-2-5 applied to these over same, the Court finds that as required by

matters and provided

Petitioners have failed entirely to perfect personal service upon Respondent(s)

ds

O.c.G.A. 21-2-5(e) and O.C.G.A 9-11-4. See Bible v. Bible, 259 Ga. 418, 418 (1989). Therefore, AND ADJUDGED that Respondent Barack

ien

Obama's Motion(s) to Dismiss in the above matters are GRANTED,

hereby DISMISSED.

Fr

Farrar, et al. v. Ohama, et al: Civil Action No. 2012CV211398 Swensson v. Ohama: Civil Action No. 2012CV211527

Powell v. Obama: Civil Action No. 2012CV211528 Welden v. Obama: Civil Action No. 2012CV211537 ORDER GRANTING MOTION(S) TO DISMISS

ow .co m
see Duke v. of the United States on the associationa1 rights of the electors. in accordance with O.C.G.A. 9and the above actions are Page 4

SO ORDERED this the

2nd

day of March, 2012.

CYNTHIA D. WRIGHT, ChIef Judg~ Fulton County Superior Court Atlanta Judicial Circuit

Copies to: Via Email and U.S. Mail:: David Farrar, Pro Se 2059 Cavesprong Road Cedartown, Georgia 30125 david. is. farrar@gmail.com Cody Robert Judy, Pro Se 3031 Ogden Avenue, Suite #2 Ogden, Utah 84403 codviudv@hotmail.com J. Mark Hatfield, Esq. Hatfield & Hatfield, P.c. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 mhatfield@wayxcable.coln

Van R. Irion, Esq. Liberty Legal Foundation 9040 Executive Park Drive: Suite 200 Knoxville, TN 37923 van(@'libertvlegalfoundatioll.org

Fr

ien

ds

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: Civil Action No. 2012CV211527 Powell v. ahama: Civil Action No. 2012CV211528 Welden v. ahoma: Civil Actio 11 No. 2012CV211537
ORDER GRANTING MOTION(S) TO DISMISS

of T

he

Fo
Page 5

gB

ow .co

c--~~\~

214 State Capitol Atlanta, Georgia 30334 cale@sos.ga.gov vrusso(aJ,sos. ga. gov

David P. Welden, Pro Se 5530 Wright Road Powder Springs, Georgia 30127 dpwelden(W,grnail.com

Fr ie

nd

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

so

fT he

Fo
Page 6

gB o

w. co

Cam-Anh Le, Esq. Vincent Robert Russo, Jr., Esq. Office ofthe Georgia Secretary of State Executive Office

Court /ill' Su perior D State Plaintiff(s)

POWELL,
Last

KEVIN RICHARD
First First I. Suffix1 Prefix First Prefix Last Maiden Maiden Middle Middle I. Suffix Prefix

OBAMA, BARACK

No. of Defendants D Pro Se

Last

First

Middle I.

Suffix

337509

he

Bar #

Check Primary Type (Che<:konly ONE)

Contract! Account Wills/Estate Real Property

fT

o o o
o

Dispossessory/Distress Personal Property

ds o

o o
~

Equity

Habeas Corpus

Appeals, Reviews

Fo
If Tort is Case Type: (Check no more than TWO)
D D D
Auto Accident Other Professional Negligence Premises Liability Liability Medical Malpractice ProductSpecifY

gB ien
D
Are Punitive Damages Pleaded? DYes
or

ow .
D No

Defendant(s)

Post Judgment Garnishment, Other Relief Non-Domestic Contempt

Attachment,

o o

Tort (If tort, fill in right column) Other General Civil Specif)' _, _

Fr

co m
PLAINTIFF'S

EXHIBIT 1'15 \\

IN THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA

136 PRYOR STREET, ROOM C-I03, ATLANT A, GEORGIA 30303

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:

summons DEFAULT

upon you, exclusivl: of the day of service. IF YOU FAIL TO DO SO, JUDGMENT WILL BE TAKEN AGAINST YOU FOR THE RELIEF DEMANDED

of

An answer to the complaint

Th
,,vhich is herewith

eF
J.

MARK HATFIELD HATFIELD & HATFIELD, P.C. 201 ALBANY AVENUE P.O. BOX 1361 WAYCROSS, GEORGIA 31502 (912) 283-3820
served upon you, within 30 days after service of this BY

og
IN THE
, 20 _ Deputy Sherriff
parties if needed, make notation on this sheet if addendum is used

Fr ien

ds

COMPLAINTd This

--)_,=.2_----.--

To defendant upon whom this petition is served: This copy of complaint and summons was served upon you

Instructions:

Attach addendum

sheet for additional

Bo

KEVIN

RICHARD

POWELL

SUMMONS ; C No"

. 'D 201) C~'1)I :52.~

w.

co m
I.

IN THE SUPERIOR

COURT OF FULTON COUNTY

STATE OF GEORGIA KEVIN RICHARD POWELl:.,

* * *

Petitioner

w.
For Judicial Petitioner of Respondent primary person

v.
BARACK OBAMA,

CIVIL No.2 ~ I.. FILE ACTIOr: )/2C/Y21

Respondent

Now comes Petitioner undersigned against counsel,

Kevin Richard

and files this Petition

og
1.
Kemp denying States,

P]~TITION FOR .JUDICIAL REVIEW

Bo
Powell, by and through Review of Georgia Kevin Richard Barack and finding ~espondent Obama election. to residing voter in the Page -1-

Respondent

Barack Obama as follows:

Secretary Powell's Obama,

of State Brian P. challenge

the President eligible

of

a presidential

Th

This action

is an appeal

to the qualifications candidate,

of the United

as a candidate

ds

This Court has jurisdiction

Fr ien

O.C.G.A.

21-2-5(e).

Petitioner

Kevin Richard Georgia.

in Gwinnett

County,

eF
2.

of a Final Decision

to seek and hold the Office of

for the presidential

of this appeal pursuant

3.
Powell is a natural He is a registered

co m
J ~ );32 '1)

State of Georgia, candidates presidential

and he is an elector

for the i?residency of the United

candida.te Barack Obama, the Respondent

4

Respondent letter Georgia

Obaln.a,on or before October Committee

ow .co m
eligible to vote for States, including herein. 31, 2011, submitted Party of Democratic Consequently, on Party Chairman Mike Berlon the name of Democratic Presidential Petitioner timely filed to the of the challenge challenge II, Section the Office of the Petitioner's challenge

to the Executive

of the Democratic

Presidential November

submitted, Respondent candidate

Preference

Pursuant

with the Georgia qualifications Presidency contended Citizen"

ds

of Th eF og B
Preference Primary Ballot. Democratic 1, 2011, Georgia pursuant to O.C.G.A.

seeking to be listed on the Georgia

21-2-193,

to the GE:~orgiaSecretary

of State's Office as a

to be list,ed on the Georgia Primary Ballot.

5.

to O.C.G.A.

21-2-5(b),

Secretary

of State a written

of Respondent

to seek and hold the Office Petitioner's

of the United

States.

that Respondent

does not meet the "natural born of Article I, Clause

eligibility

requirement

5 of the United

States Constitution.
6.

ien
Secretary

Also pursuant

to O.C.G.A.

21-2-5(b),

Fr

of State thereafter

referred

for

Page -2-

a hearing

before an administrative Hearings. 7

law judge of the Office of

State Administrative

Pursuant conducted Michael

to proper

notice

to the parties,

on January 26, 2012 before Administrative

into the record, through pertaining

counsel,

to the iE:sues raised by his challenge. however, did not appear

gB o
evidence whatsoever.

M. Malihi.

Petitioner

was present

w. co
a hearing was Law Judge and testimony Respondent for the to O.C.G.A.

at trial and submitted

his attorney, submit

for trial and failed to

any evidence

or testimony

On February initial Decision,

3, 2012, the administrative a copy of which is attached eligible

Fo
8.
Pursuant Decision

law judge issued an hereto as Exhibit

"A," finding Respondent presidential primary

fT he

as a candidate

election.

the administrative Secretary

law judge's

was reported

so

of State.

9.
to O.C.G.A.

On February

7, 2012, pursuant

21-2-5(c),

nd

Georgia

Secretary

of State Brian P. Kemp issued a Final Decision, hereto as Exhibit "B," adopting the

a copy of which is attached initial Decision

of the administrative

law judge and denying

Fr ie

Petitioner's

challen'je.

m
and

21-2-5(b),

to the

Page -3-

10. Pursuant seeks judicial to O.C.G.A.

21-2-5(e),

Petitioner

revil~w of the Secretary

of State's

in this case, and fllrther seeks a reversal Decision, Petitioner conclusions, (a) state; (b) of State; (c) (d) (e) for the rE!aSOn that substantial have beerl prejudiced and decisions because

In violati.on of the Constitution

In excess of the statutory

Fo
procedures; unwarranted

gB
authority

of the Secretary

Affected Clearly

he
erroneous ~nd capricious

Made upon unlawful

by other errors of law; in view of the reliable, and by an abuse probative,

and substantial (f)

Arbitrary

fT

evidence

on the whole record;

and characterized exercise

ds o

of discretion

and a:learly

11.
would enumerate the following Final

In particular, grounds

Petitioner

specific

for review

of the Secretary

Decision

in this case: The admini:5trative law judge, and consequently of State aciopting the initial a s::_ngle ruling Decision the

ien

(a)

Secretary

Fr

erred in issuing

applicable

ow .
of that Final rights of the the findings, of State are: of State's

and laws of this

to the cases of

co m
Final Decision inferences, of the Secretary of discretion. of said judge,

now appeals and

Page -4-

Fr ds of Th eF og Bo w.

ien

co m

Page -5-

erred

in failing to make a determination

as to the proper

placement burden

of the bu~den of proof and in failing to apply the factual and legal conclusions the fact that Petitioner

of proof in~eaching case, despite

Petitioner's

filed a pre-trial Burden of Proof"; (e) Secretary erred appear

"l1otion For Determination

of State adopting

the initial

gB

The admin:_strative law judge, and consequently Decision

in failing to find Respondent's for trial an event of default

Petitioner's independent (f) Secretary erred

challerlge to Respondent's basis;

Fo
the initial the initial construe

The administrative of State adopting

he

law judge, and consequently Decision

in adopting

of T

the reasoning

of the Indiana Court of Appeals

in Ankenv

v. Governor

of Indiana and in finding that a person born Citizen," pursuant being of to

automatically Article

qualii:ies as a "natural

II of the United

States Constitution,

his parents;

ds

born in the United

States, without

regard to the citizenship

ien

(g)

The administrative

law judge, and consequently Decision

Secretary

of State adopting

erred in failing to properly States Supreme

Fr

Court in Minor v. Hapoersett;

ow .co
in of Placement of the deliberate failure to qualifications the by merely the

of said judge,

and in failing to sustain on that

of said jud~e,

of said judge,

the ruling of the United

m
specifically Page -6-

(h) Secretary erred

The administrative of State adopting

law judge, and consequently the initial Decision

in finding that Respondent pursuant to Article

qualifies

as a "natural born States

Consti tution, despi':e the fact that Respondent's United States citizen

(i) Secretary erred Court, finding

The admin:,-strati e law judge, and consequently v of State ildopting the initial Decision at Petitioner's

Bo
Petitioner

at the time of Respondent's

w.
Primary Election

Citizen"

II of the United

in failing

og
counsel) 12. requests Preference 13. 21-2-5(e)~

request to certify

for a determination

of appropriate

action including behavior

Respondent

(and Respondent's

eF

of contempt,. the facts of the contemptuous in knowingly,

intentionally, Petitioner's

and deliberately Notice

failing to comply with

Petitioner expedited

Th

to Produce served upon Respondent.

resfectfully

that this Court grant an due to the fact is (3)

that the Georgia scheduled

of

hearing

and review of this Petition

Presidential

weeks hence.

Fr ien

ds

to take place on March

6, 2012, less than three

Pursuant

to O.C.G.A. requests

respectfully Decision

that this Court order a stay of the Final of State finding Respondent eligible to

of the Secretary

co m
the of said judge, father was not a birth; and the of said judge, to this a of further Page -7-

be included on the::lallot in Georgia presidential Court primary election pending

as a candidate

a final judgment

reviewing

said Final Decision. 14.

This Petition entry

is timely

filed within

15. Pursuant to O.(:.G.A.

21-2-5(e),

Bo
or a certified eligible of this Court; requirement in contempt

of the Final Decision by the Secretary

the Secretary

soon as possible transmit entire

after service of this Petition,

og
that Respondent

w.
ten of State. ballot

to this Court the original

WHEREFORE, requests (1)

Petj.tioner Kevin Richard

eF

record of the proceedings

under review. Powell respectfully

that this Court: Conduct

an expedited (2) Secretary

basis;

Grant Petitioner

Th

a hearing

and review the record in this case on

a stay of the Final Decision Respondent

of

of State finding in Georgia

the ballot election

as a candidate

for the presidential

ds

pending

a final judgment

(3)

Issue an ord~r reversing finding

the Final Decision

Secretary Article

of State,

does not meet the for the presidency, in

Fr ien

II "natural

born Citizen"

removing Georgia,

Respondent's and adjudging

name from the presidential Respondent

co m
for the of this (10) days after the of State, as to is required copy of the of the on to be included primary of the of court for his Page -8-

deliberate

failure to comply with Petitioner's proceedings; and

Notice to Produce

in the administrative (4) deem

Grant such other and further

relief as the Court may

just and prope.r. This 15th day of February, 2012.

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

Fr ie

nd

so fT he Fo g
3J.502 Page -9-

Bo

HATFIELD

& HATFIELD,

w. co
P.C.

OFFICE OF STATE ADMINISTRATIVE ST ATE OF GEORGIA

DA VID FARRAR, LEAH LAX, CODY JUDY, THOMAS MALAREN, LAURIE ROTH, Plaintiffs,

HEARINGS

Docket Number: OSAH-SECST ATE-CE1215136-60-MALIHI Counsel for Plaintiffs: Orly Taitz

v.
BARACK OBAMA, Defendant.

Counsel for Defendant:

DAVID P. WELDEN, Plaintiff,

v.
BARACK OBAMA, Defendant.

Fo Th e

gB

Docket Number: OSAH-SECST ATE-CE121 5137-60-MALIHI Counsel for Plaintiff: Van R. Irion Michael Jablonski

Counsel for Defendant:

CARL SWENSSON, Plaintiff,

v.

Docket Number: OSAH-SECSTATE-CE1216218-60-MALIHI Counsel for Plaintiff: J. Mark Hatfield Michael Jablonski

BARACK OBAMA, Defendant.

of

Counsel for Defendant:

ds

KEVIN RICHARD POWELL, Plaintiff, Docket Number: OSAH-SECST ATE-CE1216823-60-MALIHI Counsel for Plaintiff: Counsel for Defendant:

ien

v.

BARACK OBAMA, Michael Jablonski Defendant.

Fr

ow .

co m
Michael Jablonski

J. Mark Hatfield

'.,PLAINTIFF'S

j ,', "'~~~!BIT "

DECISION

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

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. States Constitution requin;:s that a President be a "natural bom [c]itizen." II, 1, d. 5.

gB o
21-2-5(b). 2

the office that they seek.

O.C.G.A. 21-2-5(a).

Mr. Obama is a candidate for federal

Fo
O.c.G.A.

As required by GeDrgia Law, Secretary of State Brian Kemp referred Plaintiffs' challenges to this Court fi)r a hearing.

fT he
Ga. Compo R.

January 26, 2012 .. The record closed on February 1,2012.

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

Defendant nor his counsel, Michael Jablonski, appeared or answered.

so

counsel Van R. Irion, all appeared and answered the call of the case. However, neither Ordinarily, the

Court would enter a defaul t order against a party that fails to participate in any stage of a

Fr ie

nd

proceeding.

& 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.

w. co
ld.
The United U.S. Const. art. A hearing was held on Plaintiffs Farrar, Lax, Judy,

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.

based on the law, as well as the evidence and legal arguments presented at the hearing.

Fr

ien ds

of T

he
3

Fo

gB

ow .co
This Decision is entirely

Defendant's

failure to appear, Plaintiffs asked this Court to decide the case on the merits

I.

Evidentiary Arguments of Plaintiffs Farrar, et al.

Plaintiffs Farrar, Lax, Judy, Malaren, and Roth contend that President Barack

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

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

nonjury cases in superior court. Ga. Compo R. & Regs. 616-1-2-.18(1)-(9).

he
& Regs.
attempted 4

testimony and exhibits, this Court applies the same rules of evidence that apply to civil The weight

to be given to any evidence shall be determined by the Court based upon its reliability and probative value. Ga. Compo R.

of T
Ms. Taitz

The Court finds the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative allegations.3 value, and thus wholly insufficient to solicit expert testimony to support Plaintiffs' from several of the

ds

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

Fr

ien

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 further testimony in writing.
2

) 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).

Fo

gB
616-1-2-.18(10).

valid U.S. identification papers. Further, Plaintiffs submit that Mr. Obama has previously

ow .

Obama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr.

co m

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

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.

Fr ie

nd

so

fT he
5

Fo

gB o

presented, and she was never qualified or tendered as an expert in social security fraud, or

w. co

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

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

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

Fr ie

nd

difference involves having [two] parents of U.S. citizenship, owing no foreign allegiance." ld. at 685. The Indiana Court rejected the arb'llment that 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 or Uncertainty, 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 Clrizen Clause as a Source (if Birthright Citizenship,58 Drake L. Rev. 457

(2010).

so

eligible candidate for president because he is not a natural born citizen. fd. at 681. The

fT he

Fo
6

gB o

except a natural born Citizen ... shall be eligible for the Office of the President ...

w. co
:4

regardless of the citizenship of their parents. and analysis ofArkeny persuasive.

Id. at 688. This Court finds the decision

The Indiana Court began its analysis by attempting to ascertain the definition of

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

is not defined in the Constitution).

The Indiana Coulil first explained

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."

fT he
7

Fo

mention of the term "natural born citizen" in the Constitution is in Article

gB o

"natural born citizen" because the Constitution does not define the term. ld. at 685-86;

that the U.S. Supreme Court has read the

(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:

Fr ie

nd

!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

so

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 to solve these doubts.

w. co
II, and the term
ld. at 685

ineligible, stating that children born within the United States are natural born citizens,

citizens:' 88 U.S. at 167. However, the Indiana Court explains that Minor did not define

the term natural born citiizen. In deciding whether a woman was eligible to vote, the

citizens would qualifY as natural born, and this Court agrees. The Minor Court left open the issue of whether a child born within the United States of alien parent(s) is a natural born citizen.

Next, the Indiana Court looked to United States v. Wong Kim Ark, in which the Supreme Court analyzed 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

ds o

Ark, 169 U.S. at 654).

constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language
'Jf

its history." !d. (citing Wong Kim Ark, 169 U.S. at 655) (internal citation omitted). The
Wong Kim Ark Court exten sively examined the common law of England in its decision

Fr

ien

and concluded that Wong J.;;jmArk, who was born in the United States to alien parents,

fT he
8

The Indiana Court agreed that [t]he interpretation of the

the English common law, and are to be read in the light of

Fo g

Bo w.

Minor Court merely conduded that children born in a country of parents who were its

co m

became a citizen of the United States at the time of his birth.5 Wong Kim Ark, 169 U.S. at 705.

The Wong Kim Ark Court explained:

169 U.S. at 655.

[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. 11.at 660 (quoting Inglis v. Trwtees o./Sailors concurring. And: The first section of the citizen.' It thus assumes of the constitution was this country at the time place of birth. Snug Harbor, 28 U.S. (3 Pet.) 99,164 (1830) (Story, J .

ds

Fr

ien

11.at 662 (quoting Dred Scot! v. Sanford, Finally:

All persons born in the allegimce of the king are natural-born subjects, and all persons born in tlle allegiance 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.
1'.

Id. at 662-63 (quoting United States

of T

seccnd article of the constitution uses the language, 'a natural-born that ,:itizenship may be acquired by birth. Undoubtedly, this language used in reference to that principle of public law. well understood in of the adoption of the constitution, which referred citizenship to the

he
9

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.

Rhodes, (1866) (Mr. Justice Swayne.

Fo

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.

60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting.

gB

ow .

co m

ft .__

___

Relying on the language

of the Constitution

and the historical

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 Obama was born in the United States.

Fo gB
CONCLUSION
;\

Therefore, as discussed in Arkcny, he became a

citizen at birth and is a natural born citizen. Accordingly,

President Barack Obama is eligible as a candidate for the presidential election under a.C.G.A.

Th e
::.1-2-5(b).
::;rd,

SO ORDERED, February

ds

of

2012.

~J~J~.,V~
MICHAEL M. MALIHI, Judge

Fr

ien

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.
6

10

ow .
Barack primary

co
reviews and

DAVID FARRAR, LEAH LAX, CODY .JUDY, THOMAS MALAREN, I,AIJRI.E: ROTH,

Docket Number: OSAH-SECSTAT.E:CE-1215136-60- MALUII Petitioners,

v.

Counsel for Petitioners: Orly Taitz

Bo
Counsel for Respondent: Counsel for Petitioners: Counsel for Respondent: Counsel for Petitioners: Counsel for Respondent:

BARACK OBAMA, ResJlondent.

DA VID P. WELDON, Petitioner,

v.

BARACK OBAMA,

Respondent.

CARL SWENSSON, Petitioner,

v.

fT he Fo g

Docket Number: OSAH-SECSTATECE-1215137-60- MAUHI Counsel for Petitioners: Van R. Irion Counsel for Respolldent: Michael Jablonski

Docket Number: OSAH-SECSTATECE-1216218-60- MAUHI J. Mark Hatfield Michael Jablonski

KEVIN RICHARD POWEU ..,

so

BARACK OBAMA,

Respondent.

nd

Petitioner,

Docket Number: OSAH-SECST ATECE-1216823-60- MAUHI J. Mark Hatfield Mich~lel Jablonski

v.

Fr ie

BARACK OBA~fA. Respondent.

w. co
Michael.Jablonski

IN THE OFFICE OF THE SECRETARY OF STATE STATE OF GEORGIA

m
PLAINTIFF'S

11'8" ,,'

""', .EXHIBIT

FINAL DECISION1
Petitioners filed candidate challenges pursuant to O.C.G.A.

Respondent docs not meet be State of Georgiats eligibility requirements for his name to be listed on the 2012 Presidential Preference Primary ballot. Judge ("AU") Judge Michael Malihi, Administrative Law

for the Officl~ of State Administrative

challenge on January 26, 2012 and entered an initial decision for the above-captioned

Bo w.
THAT the above-captioned
.

Hearings, held a hearing on each candidate eases on

final decision. Thel'efore, DENIED. SO DECIDED this ~;~

IT IS HEREBY

Fo g
DECIDED

February 3,2012.

The Secretary of State formally adopts the initial decision of the ALJ into this

Th e

day of Fcbmary, 2012.

. ~ '-fP. KEMP

~ '~L~

Georgia Secretary of State

Fr

ien

ds

I Judge Michae1Malihi previously C Dnsolidatcd the above-captioned candidate challenges for the purpose of issuing his initial decision. Those candidatl:' challenges remain consolidated for the purpose of issuing this Final Decision.

of

co m
21-2-5(b) contending that challenges are

CERTIFICATE I, J. Mark Hatfield, certify Petition Attorney

OF SERVICE

for Petitioner,

that I have this day served the foregoing For Judicial Review and attachments

Mr. Michael K. Jablonski Attorney at Law 260 Brighton Road NE Atlanta, Georgia 30309-1523 Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334

by placing addressed

a copy of same in the United envelope with sufficient

fT he

Honorable Michael M. Malihi Administrative Law Judge Office of State Administrative 230 Peachtree Street NW Suite 850 Atlanta, Georgia 30303

Fo g
postage 2012.

Bo w.
affixed by emailing and by emailing

thereto upon:

States Mail in a properly thereto in

order to insure proper d~livery,

and by emailing

Secretary

ds o

Jablonski

at michael.4ablonski@comcast.net,

Kemp at vrJsso@sos.oa.oov, at kbeal@osah.oa.aov.

Judge Malihi

This 15th day of February,

Fr

ien

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

31:102

co m
do hereby Summons and Hearings same to Mr. same to same to

IN THEi,: SUPERIOR

COURT OF FULTON COUNTY

STATE OF GEORGIA KEVIN RICHARD POWELl., Petitioner V. BARACK OBAMA,

*
* *

Bo w.
CIVIL ACTION FILE NO. 2012CV211528 or, in the Petitioner of Respondent primary

co m
I L_
review of the Georgia of the Georgia of Georgia Barack Obama election.

~~;;
DEPUTY CLERK SUPERIOR COURl Fl(LTON COUNTY, GA ~

* *

Respondent

Now comes Petitioner undersigned counsel,

Kevin Richard

of the above-captioned alternative, Secretary

of State herein Preference

Presidential Motion,

Th
is ~n appeal of the United

for a stay of the Final Decision

eF
and moves appellate Primary

and for a postponement Election,

of

Petitioner

shows to the Court the following:

This action Secretary Powell's Obama,

ds

of State Brian P.

og
proceeding

MOTION FOR, EXPEDITED REVIEW OR, ALTERNATIVELY, FOR STAY OF :DECISION OF SECRETARY OF STATE AND FOR POSTPONEMENT OF, PRESIDENTIAL PREFERENCE PRIMARY ELECTION Powell, by and through

the Court for an expedited

and in support of this

1.
of a Final Decision

Kemp denying

Kevin Richard

challenge

to the qualifications candidate,

Fr ien

a presidential

to seek and hold the Office of and finding Respondent

the President eligible

States,

as a candidate

for the presidential

Page -1-

PLAINTIFF'S EXHIBIT

I/c.~

2.

The Georgia scheduled

Presidential

Preference

to take place on March

6, 2012, only two

the date of this Motion.

3.
O.C.G.A. appellate State

21-2-5(e)

guarantees

review of the adverse

decision

in this matte:[. 4.

Petitioner's s~gnificant Respondent, United

aI~eal involves,

whose fa.ther was a foreign national meets the "natural

eF
5.

issue of constitutional

og

States citizen,

eligibility United

requirerr~nt of Article

Th

States Constitution.

Unless this Court grants expedited Court State

of

orders a stay of the Final Decision and a postponement Election pending of the Georgia

Primary

ds

a final judgment

Respondent

will likely claim that Petitioner's of the Georgia ~etitioner Presidential

ien

after the holding Election.

Although

would disagree, nevertheless

Fr

with any such claim by Respondent,

Bo w. co m
Primary Election is Petitioner the right to of of the Secretary among other issues, a law, i.e. whether or not and never a born Citizen" II, Section review, or unless this of the Secretary of Presidential Preference of this Court, action is moot Preference Primary Petitioner

(2) weeks from

I, Clause 5 of the

and does disagree,

Page -2-

anticipates

that Respondent

would probably

make such an argument of this appeal.

in an effort to avoid a decision

on the merits

6.
With regard to Petitioner's of this appeal, Petitioner 6.7 request

shows that Uniform

so fT he Fo g
7. In connection with Petitioner's of the Georgia and for a postponement Primary Election, Petitioner

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 such expedited procE!dure. The motion shall set forth in detail the necessity i"or such expedited procedure.

Bo
alternative 5-3-28(b),

("Motions in em(~rgencies.") provides

stay of the Final Decision herein

of the Georgia

Preference
O.C.G.A.

shows that pursuant

21-2-5(e),

while "[t]he filing of the petition of the Secretary of Stater,]

not itself stay the jecision reviewing court may

Jrder

a stay upon appropriate

cause shown." appeals

Furth<~r, O.C.G.A.

to superior

I:ourt, provides

that "[t]he superior

nd

may issue such order:3 and writs as may be necessary jurisdiction on appea.l."
8 .

Fr ie

Petitioner

subm:.ts that, in order that Petitioner of State's Final Decision

the review of the Secretary

w. co
for an expedited Superior that request Secretary of State Presidential applicable to

terms for good

m
review Court Rule for a to shall ...the court in aid of its may secure to which Page -3-

Petitioner significant

is entitled

by Georgia

law, and in order that the interpretation

issue of constitutional

Petitioner's

action may be finally and decisively review

this Court should g.rant expedited or, in the alternative, Final Decision postponement Election

the Court should grant a stay of the Secretary of State herein and a Preference Primary

of the Georgia

of the Georgia

Presidential

currently

~;cheduled for March

WHEREFORE, requests herein.

Petitioner

Kevin Richard

that this Court grant the relief

og
2012. HATFIELD

This 21st day of February,

eF

Th ds
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

Fr ien

of

Atbdrney Bar No. 3~7\09 for Pet1t\oner Georgia

31502

Bo w.
6, 2012. requested & HATFIELD, P.C. rk Hatfierd

of the instant appeal

Powell respectfully by Petitioner

co m
raised by adjudicated, Page -4-

CERTIFICATE

OF SERVICE

I, J. Mark Hatfield, Attorney for Petitioner, do hereby

certify that I have this day served the foregoing Motion Review or( Alternatively, For Stay of Decision of Presidential

Expedited Secretary Preference

of State and For Postponement Primary Election upon:

by placing addressed

a copy of same in the United envelope with sufficient delivery,

Th eF og Bo
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

States Mail in a properly affixed thereto in

postage

order to insure prop~r Jablonski

and by emailing

at michael.4ablonski@comcast.net Kemp at vrusso@sos.aa.gov. 2012.

This 21st day o~ February,

of

to Secretary

HATFIELD

& HATFIELD,

ien

Fr

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

ds

31502

w. co
For of same to Mr. same and by emailing P.C.

IN THE: SUPERIOR

COURT OF FULTON COUNTY STATE OF GEORGIA

Petitioner, vs. BARACKOBAMA, Respondent

Civil Action File Number 2012 CV 211528

MOTION TO DISMISS

Respondent moves t his Court for an order dismissing the petition as follows: 1. This Court :I acks jurisdiction over the subject matter. O.C.G.A. 9-1112(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. 911-12(b)(6).

Argument in favor of the motion to dismiss is set forth in the accompanying brief.

Fr

ien

ds o

Respectfully submitted,

This 27th day of February, 2012.

MICHAEL JABLONSKI Georgia State Bar Number 385850

2221-D Peachtree Road NE

Atlanta, Georgia 30309

404-290-2977
michael.jablonski@cClmcast.net
PLAINTIFF'S EXHIBIT 'I ,\ =--r2

fT he

Fo g

Bo w.

KEVIN RICHARD POWELL,

co m

CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing pleading upon Mr, Mark Hatfield Attorney at Law 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502

mhatfleld@wayxcable.com, This 27th day of February,

::2.012.

MICHAEL JABLONSKI Georgia State Bar Number ~:\85850 2221-D Peachtree Road NE Atlanta, Georgia 30309 404 -290-2977 michael.jablo nskifcDco mcast.net

Fr

ien

ds

of

Th e

Fo g

by statutory electronic service pursuant to O.C.G.A. 9-11-5(e) using the email address

Bo w.

co m

KEVIN RICHARD POWELL, Petitioner, vs. BARACK OBAMA Respondent

Civil Action File Number

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.!

Fr ie

nd

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. Good et aI, 4:2009cvoo082, 2009 WL 2163535 (M.D. Ga. July 16, 2008).
1..

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 (9th Cir., 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 Missouri et al v. Obama et aI, 6:08cv03405, 2011 WL 4916569 (W.D. Mo. Oct. 17, 2011); Cohen v. Obama, 1:08cv02150, 2008 WL 5191864 (D.D.C., Dec. 11,2008), aff'd, 2009 WL

so fT he Fo g

Brief in ~:~upportof Respondent's Motion to Dismiss

The appeal from the Secretary of State's decision finding that President Obama is

Bo

2012 CV 211528

w. co

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

Fr

ien

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 WL 532617 (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-cv00544, 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, 131 S. Ct. 1017 (2011); Hunter v. U.S. Supreme Court, 2:08cv00232, 2009 WL 111683, (N.D.Tex., Jan. 16,2009), appeal dismissed, No. 09-10246, No. 10-10009, No. 10-100064 (5th Cir., 2009); Jones v. 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, 131 S. 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 ( 11th Cir. 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 CV 2593, 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 (DC Cir., Oct. 31,2011); Taitz v. Astrue, 1:11-CV-00402, 2011 WL 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. 49A020904-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,

ds o

fT he

Fo g

Bo w.

co m

An effort to harass the President continues with qualification challenges filed across the country and in (}eorgia. Challengers ignore procedural and evidentiary

pursuit of a political agenda. See, for example, Rhodes v. MacDonald, 670 F. Supp.2d 1363,1364 (M.D. Ga. 2009), affd, 2010 WL 892848 (11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009)("When a lawyer uses the courts as a platform for

2008); Craig v. Oklahoma: MA-109808 (Okla. Supreme Court); Donofrio v. Wells, No.

Fr ien

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. Supreme Court, 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(Ohio State Court, 2008); Stumpo v. Granholm, No. 08-140-MM (Mich. Dist. Ct. (30th) Mar. 31,2009), appeal dismissed:, No. 291681, (Mich. App. Ct., Jun. 3, 2009); Stunk v. Patterson, 029641/2008 (N.Y. State Court, 2008); Strunk v. Patterson, 029642/2008 (N.Y. State Court, 2008); 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-l001731 (Haw. State Court); 'Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373; Wroilnowski v. Bysiewicz, SC 18264 (Conn. Supreme Court, 2008).

ds

of

Th

eF

og

Bo w.

requirements because thei r claims are without merit, based on fantasy, and offered in

co m

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

The Democratic Part,? of Georgia, a political party as defined by O.C.G.A. 21-2-

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

Fr

ien

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.

ds

2(25), participates in the Georgia Presidential Preference Primary "so that electors may

of

A. THE STATE OF GEORGIA MAY NOT EXERCISE JURISDICTION- OVER A POLITICAL PARTY'S CHOICE OF NAMES TO IN(;LUDE IN THE PRESIDENTIAL PREFERENCE PRIMARY.

Th

eF

og

Bo w. co m

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

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~!,0-1 (nth Cir. 1992). First amendment associational rights of a political party are most often litigated in the context of a party refusing to allow a

gB

or Duke v. Cleland) but the reverse is also true: a political party enjoys the exclusive

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).

Fr

ien

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. he election code defines "election" as "any general or T

special election and shall not include a primary or special primary unless the context in

ds

B. THE QUALIFICATIONS CHALLENGE STATUTE DOES NOT APPLY TO THE PRESIDENTIAL PREFERENCE PRIMARY.

O.C.G.A. 21-2-5 does not apply to the Presidential Preference Primary. The

of T

he

right to dictate names on it~;: rimary ballot. The right to associate not only contemplates p

Fo

name to appear on a primmy ballot (such as in Democratic Party of

ow .
u.s. v.

party "enjoys a constitutionally protected freedom which includes the right to identify

co m
Wisconsin

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

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

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 PARTY IS INSUFFICIENT The return of service filed with the Court shows that service of the summons and complaint was made by mailing to respondent's attorney. Petitioner did not seek a waiver of personal service 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)

Fr ien

ds

of

Th

eF

a name on the preference ballot. O.C.G.A. 21-2-198. There is no qualifying nor does a

og

Bo w.

reference the Presidential Preference Primary. Nothing in the context of O.C.G.A. 21-

co m

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 15 of the review petition petitioner seeks to stay the action of the Secretary of Stay. The petition does not seek any relief against the President, but only against the Secretary. 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

Fr ie

nd

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

so fT he Fo g

Bo

w. co

III. THE PETITION FOR REVIEW DOES NOT STATE CLAIMS AGAINST THE PRESIDENT

with service of process statute. Williamsonv. 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.

Fr ien

ds o

2221- D Peachtree Road NE Atlanta, Georgia 30309 404-290-2977 michael.jab Ionski@)comcast.l1et

fT

MICHAEL JABLONSKI Georgia State Bar Number 385850

he

Fo

gB ow .co m
Basenback, 298 Ga.App. 567, 680 S.E.2d

CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing pleading upon Mr. Mark Hatfield Attorney at Law 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502

by statutory electronic service pursuant to O.C.G.A. 9-11-5(e) using the email address mhatfield@wavxcable.com.

This 27th day of February, ~W12.

MICHAEL JABLONSKI Georgia State Bar Number ~!,85850 2221- D Peachtree Road NE Atlanta, Georgia 30309 404-290-2977 micha el.jablonski (ji) comcast.net

Fr

ien

ds o

fT

he

Fo

gB

ow .

co m

IN THE: SUPERIOR

COURT OF FULTON COUNTY

STATE OF GEORGIA KEVIN RICHARD

POWELJI~,

*
*

w. co
I
Respondent. presumably and evidentiary based on agenda." "all

m
r FI~~[iN OFFICE
[~AR 05_

2~_l
fnS

Petitioner V. BARACK OBAMA,

CIVIL ACTION

D~PU1Y CtERl( COUNTY, GACOURT FULTON "WERIO. R ._

* * *

FILE NO. 2012CV211528

Respondent

PETITIONER'S RESPONSE TO RE:SPONDENT'S MOTION TO DISMISS Now comes Petitioner undersigned Motion counsel,

and responds

Fo
as follows: bringing Page -1-

Kevin Richard Powell, by and through to Respondent Barack Obama's

to Dismiss herein

fT he
PRELIMINARY Obama's Motion herein, for office because in pursuit

Respondent the instant country

gB o
STATEMENT claims that to Dismiss initially challenges to Respondent's of a political Finally, from the and that therefore, have been met." A review of

case is one in a series of cases filed across the

since 2008 in "[a]n effort to harass"

including

qualifications requirements fantasy,

so
Petitioner and offered -

Respondent

further claims that those individuals,

"ignore procedural

Fr ie
moment

nd
Respondent Constitutional

their claims are without merit,

claims that he "was a United States citizen

of his birth .in Hawaii"

(sic) qualifications

PLAINTIIFF'S EXHIUlT

IJ/:=_

-,\

the record in this action, assertions are completely

however,

misguided.

Petitioner Respondent Un~ted

firnt notes that no individual,

Obama, hcls a

vested right

States.

An individual

seeking to hold the Office

Presidency

is expected

and required

of the Constitution, the presidency, States thereof.

including

the eligibility

and the laws of the United

With the foregoing it was Respondent

eF og
in mind, Petitioner Likewise, dismissed. to Produce, requiring and attacked Page -2-

Obama,

in fact, who initiated

his name as a candidate Presidential under Georgia Ballot.

to be listed on the Georgia in accordance

law, P2titioner

Th

raised an administrative

to the Respondent's pursuant

qualifications

to Article

II of the United States Constitution. to have

Respondent

Petitioner's

of

and his la.wyer tried, unsuccessfully, challenqe Respondent

and to bring certain documents

ds

served with a Notice

and items of evidence

ien

The Respondent

did not object. the Respondent's of State in which law judge

When the time for trial was imminent,

lawyer wrote a lette!: to the Georgia criticized

Fr

he boldly

Bo w. co m
reveals that Respondent's including to be the President of the of the to comply with the provisions requirements for would point out that the submission Democratic with his rights challenge as a "natural born Citizen" was then legally with him. Secretary the administrative

States and the Several

of

him to appear at trial

and in which he stated that he and his client were refusing come to court. The day of trial, when Respondent schedule,

or duties on his official public Secretary

of State llad warned him that his failure

would be at his own peril, the Respondent nevertheless Petitioner's failed to appear valid Notice

for court and failed to comply with The Respondent thus not

to Produce.

only presented office,

no evidence of his own as to his eligibility

but he failEd to produce

eF og
requirements," is a "natural Petitioner Page -3-

significant

to which Petitioner

was legally entitled.

In view of the foregoing misconduct Respondent disregard appears

and his lawyer, and considering

of the laws of this State and the judiciary

that it

Th

is Respondent,

and not Petitioner,

procedural political

and evidentiary agenda,"

and whose factual assertions

to support with any evidence - are "based on fantasy." Petitioner, availing far from seeking to "harass" anyone, is simply

of

to properly

ds

himself

of lawful procedures

raise and have finally determined

ien

whether

Respondent,

liVhose fa ther

was a foreign

a United

States

citizen,

under Article United States.

II

of the Constitution In that regard,

Fr

Bo w. co m
to had no events and after the to appear and his lawyer for pieces of evidence and failings of total thereof, Respondent's who "ignore[s] who is "in pursuit - which he fails under Georgia law in order the issue of

it

of a

na tiona]

and never

born Citizen"

eligible of the

for the Presidency contends

that the

"natural prevent national command

born CitiZl'~n"requirement

anyone born with dual national allegiance~3 from holding of this nat:_on's military e)f national

less than a matter and construction

security

of the "natural

born Citizen"

set forth in Minor V. Happersett, 627, 21 Wall. Judiciary. I.

162 (1875), be conclusively

SUBJECT-Mlli.TTER JURISDICTION

Seeking dismissal jurisdiction Amendment

in this Court, Respondent

associational

eF og
Primary ballot. associational in the situation however, Page -4-

on the basis of a lack of subject-matter first argues that First party give the

rights of a political

party the exclusive Presidential contends

Th

right to determine

Preference

that First Amendment

"most often litigated" to permit

of

a name on 3 primary ballot

(1981); Duke v. Clel~3.nd,954 F. 2d 1526 also claims that "thl~ reverse

ds

U.S. v. Wisconsin,

58 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82 (11th Cir. 1992)), he

is also true" in that the party has

ien

the unchecked

right:o

require certain names on its primary cites no authority for the latter are

ballot.

Respondent,

Fr

proposition.

Moreover,

none of the cases cited by Respondent

Bo w. co m
of Article II was intended and dual to citizenship the presidency forces. and the ultimate It is thus nothing that the proper meaning requirement, as 88 U.S. 162, 167, 22 L. Ed. confirmed by the whom to include on its While Respondent rights of a party are in which a party refuses Party of (citing Democratic

authority

for the c~Jnclusion that a political asso(:iational rights deprive that candidates

party's

constitutional its ability statutory placed

w. co
or in order to be the Georgia elector, of State is is the candidate

a state government

to require

meet constitutional

eligibilit:y requirements

for office

on the state ballot.

Secretary

of State, or an eligible

gB o
Georgia whether O.C.G.A.

O.C.G.A.

21--2-5(b) and

(c) authorize

a candidate's thereafter qualified elector

qualii'ications, and the Secretary to determine

empowered

Fo
however, challenge general unless Page -5-

to seek ard hold office. challenging

21-2-5(e)

unsuccessfully

a candidate's

qualifications by filing a

the right to appeal petition state's

the Secretary

of State's decision

in the Superior

fT he

Court of Fulton County.

Given the to the

right to run its own elections, rights of the Respondent's

nothing pertaining political

associational

party deprives

this Court of subject-matter

jurisdiction

in this matter.

the Georgia

so

Respondent

also contends,

that O.C.G.A.

qualifications Preference

statute,

does not apply to

the Presidential

Primary and that this Court therefore jurisdiction. In this connection, of "election" found in but

nd

does not have subject-matter Respondent points

out that the definition includes

O.C.G.A.

21-2-2(5)

or special elections, the context in which

Fr ie

not a primary

or special primary

m
of to challenge gives an

21-2-5,

"election"

is used

nclearly requires"

the inclusion

or special primary. Respondent 21-2-15 inasmuch overlooks, as however,

the provisions

Respondent challenge

further

fails to realize

statute,

(I.C.G.A.

the qualifications type of election. Primary

e,f "any candidate,"

Fo

21-2-5(b) defined Page -6-

21-2-5, grants a right to challenge regardless of the specific Preference

he

Contestants

gB
committee provides,

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.

in a Presidential O.C.G.A.

are designated

as "candidates."

"certified

of T

Respondent

nevertheless

argues that a "candidate"

by the state executive

ow .
that the qualifications

of a political

or must submit

"a notice of candidacy," of such conditions

see O.C.G.A.

and that neither Respondent. challenge

have taken place as to however, that a

O.C.G.A.

ds

of the qualifications

of any candidate

any time prior to th,:; election

of such candidate,"

ien

Respondent's certification Petitioner

political

party would presumably

of his nomination

prior to the general election. and "notice of

additiona:Lly submits that "certified" are not specifically

Fr

candidacy"

terms in the Georgia

co m
of a primary of O.C.G.A.

21-2-193. must be party"

21-2-5(a),

may be made "at and

be filing a

Election

Code, and one could argue that the list of Presidential Primary candidates submitted 21-2-193 by Respondent's a

Preference

party pursuant "certification"

to O.C.G.A. or
21

"notice

of candidacy."

Accordingly, challenge Preference

it: is apparent

that the Georgia

statute deles, in fact, apply to the Presidential

jurisdiction
II.

Respondent of the summons [R]espondent's service

of Th eF og B
herein.
SERVICE Oli' SUMMONS

Primary

2lnd that this Court does have subject-matter

alse, seeks dismissal

for the reason that "service to

and complaint

was made by mailing

attorney."

Respondent

or a waiver

thereof was required

The case of Douglas Asphalt Commission,

Co. v. Georgia

263 Ga. App. 711, 589 S.E. 2d 292 In DOt:,glas Asphalt,

controlling.

the Court held that in an of a state agency or other for judicial review

appeal of an administrative tribunal, personal

decision

service of the petition

to preserve

ds

upon the agency was not required, the jurisdiction

and service by mail was proper The Court from an agency in

of the court.

ien

specifically

noted that service of appeals by O.C.G.A.

decision

is governed

5-3-21, which provides

pertinent

part that "[a] copy of the notice of appeal in the same manner prescribed

Fr

served on all parties

Page -7-

ow .co m
constituted qualifications claims that personal for a viable suit. Public Service (2003) is shall be by Code

political

Section

5-6-32."

O.C.G.A.

5-6-32(a),

in turn, provides

pertinent

part that

Therefore, Respondent accordance however,

in the instant

Obama by mailing with Georgia

eF
law.

Whenever under this article service or the giving of any notice is required or permitted to be made upon a party and the party is represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service of all notices and other papers hereunder and service of motions for new trial, motions in arrest, motions for judgment notwithstanding the verdict, and all other 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.

og
Petitioner

case, service of the Petition upon was in

same to his attorney

Th

that even if the service by mail were for any reason not proper, C.C.G.A.

considered

5-3-2l(b)

Bo
RESPONDENT because

w.
notes in passing, states in pertinent part and to permit a just and "[t]he proper of State states such contention

that "[f]ailure dismissal,

of

to perfect

service on any party shall not work court shall grant continuances

but the superior

expeditious

ds

enter such other orders as may be necessary determination of the appeal."

III. STATEMENT

OF CLAIM AGAINST requests a decision

Fr ien

Respondent

finally

dismissal

party when challenging is the Secretary

made by the Secretary

of state."

Respondent

Page -8-

co m
in

with no citation Respondent

of authority

whatsoever.

Nevertheless,

goes on 1:0 claim that Petitioner's

seek any relief against Respondent,

Secretary of State. Respondent

but only against the contends

lack of personal

ju]~isdiction over the Secretary appearance

this matter."

Beginning

of Th eF og Bo
with the latter issue of "summons," is flawed. O.C.G.A.

"[n]o summons commands

by the Secretary

legal analysis Petitioner's decision action. O.C.G.A. service

21-2-5(e)

Petition

For Judicial

Review

of the Secretary

of State; it is not an original to service of the Petition in

w.
is "summons" in pertinent is "summons" by mail,

further

is an appeal from the civil

The only reference

21-2-5(e)

states that "[a]s soon as possible

of the petit.ion, the Secretary or a certified Nowhere

of State shall transmit

the original reviewing

copy of the entire record ...to the required

court."

in this statute

or even mentioned. Likewise, that"

O.C.C;.A.

5-3-21(b)

provides

ds

[a] copy of t:he notice

.... "

of appeal

shall be served on all required

parties

Again,

nowhere

in the statute

or even mentioned.

ien

Furthermore,

in DouQlas Asphalt,

263 Ga. App. at 711-712,

the state agency wa~: served with the petition summons at all. The Court affirmed

Fr

the judgment

Page -9-

co m
action does not of State, as of State in Respondent's makes plain that after part

that there is a

wi th no

of the superior

court which denied dismiss personal

-:he agency's motion

to dismiss.

had been ba:3ed upon an allegation service. the Secretary

of failure

proper party to thi~; petition. State is essentially court. brought

In this appeal,

w.
challenge of State Petitioner

As for his rOlE! herein,

of State is not a

The challen~re to Respondent'~

Bo
below, in any manner.

in a quasi-judicial

role, akin to a lower was not Petitioner (at of

qualifications

by the SecrE~tary of State, but by Petitioner. were the named parties

and Respondent

og
adjudicated does therefore Page -10-

and Respondent the Secretary

least up until trial) defended

the challenge;

with an interest the Secretary

at stake in this challenge

eF

State did not defen~. the challenge

was Respondent,

of State.

Under these circumstances, dispute agency). between Petitioner

Th

Petitioner's

and the Secretary

The challenge

was a dispute between

Respondent, State.

of

and same was merely Petition

by the Secretary

The instant

state a claim against

ds

Respondent.

The items of relief

sought by Petitioner

action are a reversal

of the Final Decision

of the Secretary II

Fr ien

State, a finding that Respondent "natural born Citizen"

does not meet the Article for the presidency,

requirement

of Respondent's

name from the ballot,

an order adjudging

co m
to perfect the Secretary of The entity not was not a (i.e. the and of in the instant of a removal

The motion to

Respondent

in

conter~pt of

court
Notice

for his deliberate to Produce

comply with Petitioner's proceedings; Presidential

in the administrative of the

and cOllditionally, a postponement Preference Primary Election.

relief be granted

b~' this Court,

such would be primarily the Final Decision

w.
The Secretary citation the challenge court. however,

Should the requested granted

Secretary

of Th eF og Bo
of State ~rith direction to the Secretary remedy to be crafted, court judgn~nt with direction. of the requested require statutes the Secretary a party. further notes that Respondent's
2E:4 Ga. 550 (2008)

in the form of an order reversing

the appropriate

in much the same manner

that the Court of Appeals superior

or Supreme Court would reverse a of State this

simply does not neec. to be a party in order to accomplish Court's granting relief, and none of the

applicable considered

of State to be named or

Petitioner Handel

v. Powell,

is misplaced,

Secretary

of State there personally qualifications.

brought

candidate's elector,

There was no challenge

filed the petition

ds

as in Petitioner's

instant case.

Powell, the candidate,

for judicial

review, and Powell and the (2) parties in both the

ien

Secretary initial

of State were the only two

challenge

and the appeal to superior

Petitioner

again notes in passing,

Fr

Secretary

of State were for any reason deemed to be a necessary

Page -11-

co m
failure to of the of State as to to as the to a filed by an that even if the

party

to this appea:. who had not been properly states in pertinent

served, O.C.G.A. to perfect

5-3-2l(b) service

part that "[f]ailure

on any part~l shall not work dismissal,

court shall grant continuances be necessary the appeal."

and enter such other orders as may determination of

to perrlit a just and expeditious

CONCLUSION

For the above 2lnd foregoing requests that Respondent's

gB o
reasons, & HATFIELD,

Motion to Dismiss be denied. 2012. P.C.

Respectfully

s1.:bmitted,this 2nd day of March, HATFIELD

Fr ie

nd

so

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

fT he

31502

Fo

Page -12-

w. co
Petitioner

but the superior

m
respectfully

CERTIFICATE I, J. Mark Hatfield, certify Response Attorney

OF SERVICE

for Petitioner,

that I have this day served the foregoing to Respondent's Motion to Dismiss upon:

Mr. Michael K. Jablonski Attorney at Law 2221-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 addressed

a copy of same in the United States Mail in a properly envelope "ith sufficient postage affixed thereto in

order to insure proper delivery, Jablons ki at to Secretary

Th e

Fo
2012. HATFIELD

gB
and by emailing same to Mr. same and by emailing & HATFIELD, P.C.

michae::~.'jablonski@comcast.net
Kemp at vrusso@sos.qa.qov.

This 2nd day of March,

ien

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

ds

Fr

of

3I502

ow .

co m
do hereby Petitioner's

r age; I VI I

Mark Hatfield
From: Sent: To: Cc: Subject: Mark Hatfield UmarkI1atfield@yahoo.com]
Friday, March 02, 2012 6:52 AM

elizabeth.baum@fultoncountyga.gov michael.jablonski@c:omcast.net;vrusso@sos.ga.gov

Attachments: powellkr1res.pdf

Please see attached Petitioner's Re:3ponseto Respondent's Motion to Dismiss. As per the Court's permission, please accept this Response as filed with the Court today. I am forwarding the original to the Clerk for filing by UPS overnight mail to arrive Monday.

Fr

ien

3/2/2012

ds

of

Th e

CONFIDENTIALITY NOTICE: This; e-mail transmission and the attachments accompanying it contain information from the lawl)ffice of Hatfield & Hatfield, P.C. which is protected by the attorney-client communication priivilege or the work product privilege. The information is intended only for the use of the irltended recipient. If you are not the intended recipient, be aware that any disclosure, copying, distlribution, or use of the contents of this transmission is prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail and then destroy all (::opies of the transmission.

Fo

gB

J. Mark

Hatfield, Esq. Hatfield & Hatfield, P.C. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820 (912) 283-3819 Fax mhatfield@wayxcable.com

ow .

** Court Filing ** Powell v. Obama / Fulton Superior CAFN: 2012CV211528

co m

ragt: Mark Hatfield

From:
Baum, Elizabeth [Elizl3beth.Baum@fultoncountyga.gov] Friday, March 02, 201'2 8:30 AM

1 Ul .)

Sent:
To;

mhatfield@wayxcabIEi.com; codyjudy@hotmai/.com; michael.jablonski@comcast.net; Vincent; David Farrar; van@libertylegalfoundation.org; cale@sos.ga.gov White, Connie

Subject:
Importance:

RE: Farrar, et a!. v. Obama, et a!.: 2012CV211398; Welden v. Obama: 2012CV211537, v. Obama: 2012CV211527, Powell v. Obama: 2012CV211528 High

w.

Cc:

Counsel/Parties:

Thank you for submitting these Responses to us within the timeframe articulated doing so by email as requested.

eF
County

og

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. and for

Fr ien

Baum, Elizabeth Thursday, March 01, 2012 10:32 AM To: 'mhatfield@wayxcable.com'; coc:yjudy@hotmail.com; michael.jablonski@comcast.net; Russo, Vincent; David Farrar; van@libertyleqalfoundation.org; cale@sos.ga.gov 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

From:

Sent:

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.

3/2/2012

ds

of

Chief Judge, Superior Court of Fulton 136 Pryor Street, SW, Suite C92 7 Atlanta, GA 30303 Phone: (404) 613-4187 Fax: (404) 893-6610 elizabeth. ba um({7)fultoncoun tvga"go\'

Th

Elizabeth Baum Staff Attorney to the Honorablle Cynthia D. Wright

Bo

co m
Russo, Swensson

rag\:: L

Ul)

Thank you,

Elizabeth Baum Staff Attorney to the Honorab:le Cynthia D. Wright

Chief Judge, Superior Court ofFlllton County 136 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\'

J. Mark Hatfield [mailto:mha1;field@wayxcable.com] Thursday, March 01, 2012 1025 AM To: Saum, Elizabeth; codYiudy@hotmail.com; michael.iablonski@comcast.net; Russo, Vincent; David Farrar; van@libertvlegalfoundation.orC!; 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
From:

Sent:

Ms. Baum,

Would the Court please accept my responses (for Plaintiffs Swensson and Powell) as filed with the Court by tomorrow's deadline by email or fax, with a hard copy to be delivered to the Clerk thereafter? The reason for this request is that I am leaving 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 and Powell as filed with the Court by email (or fax) with the hard copy being delivered to the Clerk after tomorrow's deadline. I appreciate the Court's consideraljon of this request.

"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>; mi chad. iablonski(a),comcast.net<michael. iablonski@comcast.net>; Russo, V incent<vrusso(evsos. ga.gOY>;David Farrar<david. is.farrarra~gmail.com>; 111 hatf!e I d((i)wayxcabIe.com <mhatfield(lvwayxcab Ie .com>; van(QJ.li bertv Iegalfoundation.org<:vanrCi}libertvlegalfoundation. org>; cale{{V,sos. ga.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

Fr

ien

ds

J. Mark Hatfield

of Th eF og Bo

w.
27.

3/2/2012

co m

J. a!:,,,,,

vJ.

2012. If you 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~~7 Atlanta, GA 30303 Phone: (404) 613-4187 Fax: (404) 893-6610 elizabeth. baum((7J,ful toneo un tvga. gO\"

Fr

ien

3/2/2012

ds

of T

he

Fo

gB

ow .

co m

Atto rney-at -law

January 25, 2012

Hon. Brian P. Kemp Georgia Secretary of State: 214 State Capitol Atlanta, Georgia 30334

Dear Secretary Kemp:

Fr ie

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 (If the 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.

nd

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. PLAINTIFF'S EXHIBIT

so

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 or run for re-election to his office, on the now wholly discredited theory that he does not meet the citizenship requirements. As you know, such allegations have been the subject of numerous judicial 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.

fT he

Re:

Georgia Presidential Preference Primary Hearings

Fo

gB o
via email to Vincent R. Russo Jr .. Esq. (vrusso@sos.ga.gov)

w. co
260 Brighton Road, NE Atlanta, Georgia 30309 404.290.2977 815.846.0719 (fax)
m icha e I.ja b Ions ki@comcast.net

Michael Jablonski

m
"
~

I I I I I

Fr

ien ds

I I I I I

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 lawyer abuses her privilege to practice law....

As a national leader in the so-called 'birther movement.' Plaintiff's counsel has attempted to use litigation to provide the 'legalfoundation' for her political agmda. She seeks to use the Court's power to compel discovery in her efforts force the President to produce a 'birth

of T

he
2

Fo

Nonetheless, the ALJ has decided, for whatever reason, to lend assistance through his office--and by extension, yours-to the political and legally groundless tactics of the plaintiffs. One of the attomeys for the plaintiffs has downloaded form subpoenas which she tried to serve around 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~lil for Barack Obama, II, issued 08.08.1961 by Dr. David Sinclair ...," even though Hawaii courts had dismissed with prejudice the last attempt to force release of confidential records on November 9, 2011. Taitz v. Fuddy, CA No. 11-11731-08 RAN.

gB

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 producedofficial 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 the country. 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.

ow .co

certificate' that is satisfactory to herself and her followers:~ 670 F.

Supp. 2d at 1366.

I
J

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 he has allowed the plaintiffs~ counsel to run amok. He has not even addressed these issues--choosing to ignore them. Perhaps he is aware that there is no credible response; perhaps he appreciates that the very demand made 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).

Fr
I
I
cc:

I I I I I I I I I

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.

ien

ds

Very truly yours,

L:Ju : J,.a /J( {/~t

MICHAEL JABLONSKI

Georgia State Bar ]~umber 385850

Attorney for President Barack Obama

Hon. Michael Malihi (c/o Kim Beal (kbeal@osah.ga.gov)) Van Irion, Esq. (van@libertylegalfoundation.org) 3

of T

he F

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

og Bo w. co m

,
01

Fr ien

ds

of

Th
4

eF og B

ow .co

Orly Taitz, Esq. (orly.taitz@gmail.com) Mark Hatfield, .Esq. (mhatfield@wayxcable.com) Vincent R. Russo Jr., Esq. (vrusso@sos.ga.gov) Stefan Ritter, EBq. (sritter@law.ga.gov) Ann Brumbaugh, Esq. (abrumbaugh@law.ga.gov) Darcy Coty, Esq, (darcy.coty@usdoj.gov) Andrew B. Flake, Esq. (andrew.flake@agg.com)