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2012-01-19 Swensson Motion for Determination Re Burden of Proof

2012-01-19 Swensson Motion for Determination Re Burden of Proof

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Published by Jack Ryan

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Published by: Jack Ryan on Jan 28, 2012
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01/29/2012

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Kcvin Westray, Le
OFFICE OF STATE ADMINISTRATIVE HEARINGS
STATE OF GEORGIACARL SWENSSON,
Plaintiff
V.
OCKET NO.: OSAH-SECSTATE-CE-
1216218-60-MALIHIBARACK OBAMA,
Defendant
OFFICE OF STATE ADMINISTRATIVE HEARINGS
STATE OF GEORGIA
KEVIN RICHARD POWELL,Plaintiff
V.
OCKET NO.: OSAH-SECSTATE-CE-
1216823-60-MALIHIBARACK OBAMA,
Defendant
MOTION FOR DETERMINATION OF PLACEMENT OF BURDEN OF PROOF
Now come Plaintiffs Carl Swensson and Kevin Richard Powell,by and through undersigned counsel, and respectfully move theCourt, pursuant to OSAH Rule 616-1-2-.07, for a determination bythe Court of the proper placement of the burden of proof in theabove-styled cases, and Plaintiffs show to the Court the
following:
Page -1-
 
1.The above-captioned cases are actions in which Plaintiffsare challenging the qualifications of Defendant to appear on thevoting ballot in Georgia as a candidate for the Presidency of the
United States.
2.OSAH Rule 616-1-2-.07(1) provides that, with certainexceptions not applicable herein, "[t]he agency shall bear theburden of proof in all matters."3.OSAH Rule 616-1-2-.07(2) states that, "[p]rior to thecommencement of the hearing, the Administrative Law Judge maydetermine that law or justice requires a different placement ofthe burden of proof."4.The instant actions were not initiated by the applicable
agency herein, the Office of the Secretary of State. Rather,
these actions were commenced by Plaintiffs, pursuant to O.C.G.A.§ 21-2-5(b), "by filing a written complaint with the Secretary of
State...."
5.Upon the filing of Plaintiffs' challenges to Defendant'squalifications, the Secretary of State was required as a matterof procedure, also pursuant to O.C.G.A. § 21-2-5(b), to refer the
Page -2-
 
challenges to the Office of State Administrative Hearings for a
hearing.
6.At present, the "agency," i.e. the Office of the Secretaryof State, has made no determination of candidate qualifications;has issued no decision; and is not a party to these actions, andit would therefore be inappropriate in these actions for theagency to bear the burden of proof as initially suggested by OSAH
Rule 616-1-2-.07(1). The burden of proof therefore must lie
either with the named Plaintiffs (i.e., to prove the Defendantineligible) or with the named Defendant (i.e., to prove himself
eligible).
7.
Article II, Section I, Clause 5 of the United StatesConstitution provides, in pertinent part, that "[n]o Person
except a natural born Citizen, or a Citizen of the United States,
at the time of the Adoption of this Constitution, shall beeligible to the Office of President...."
8.
O.C.G.A. § 21-2-5(a) requires that "[e]very candidate forfederal...office who is certified by the state executivecommittee of a political party or who files a notice of candidacy
shall meet
the constitutional and statutory qualifications forholding the office being sought (emphasis supplied)."
Page -3-

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