HATFIELD & HATFIELD, P.C.
ATTORNEYS AT LAW
201 ALBANY AVENUEP.O. BOX 1361WAYCROSS, GEORGIA 31502J. MARK HATFIELD
ELEPHONE (912) 283-3820THOMAS E. HATFIELD
ACSIMILE (912) 283-3819
February 7, 2012
VIA EMAIL ONLY
(to
vrusso@sos.qa
.ctov)
Honorable Brian P. KempSecretary of StateState of Georgia214 State CapitolAtlanta, Georgia 30334
RE: Carl Swensson v. Barack Obama
Office of State Administrative HearingsDocket No. OSAH-SECSTATE-CE-1216218-60-MALIHIKevin Richard Powell v. Barack ObamaOffice of State Administrative HearingsDocket No. OSAH-SECSTATE-CE-1216823-60-MALIHIDear Secretary Kemp:As you are aware, Administrative Law Judge Michael Malihi issueda "Decision" in the above-referenced matters on this past Friday,February 3, 2012, holding Defendant Barack Obama eligible as a
candidate for the presidential primary election. Because you are
now charged, pursuant to O.C.G.A. § 21-2-5(c), with making afinal determination of Defendant Obama's eligibility to appear onthe ballot in Georgia, I am writing to respectfully point outseveral significant flaws in Judge Malihi's findings and
conclusions.
Initially, I would note that although Judge Malihi ordered myclients' cases severed, as a unit, from the cases of PlaintiffsWelden; Farrar; Lax; Judy; Malaren; and Roth,
and although
Judge
Malihi conducted a separate hearing as to my clients' cases asrequested, he nevertheless erroneously issued a single "Decision"applicable to all of the Plaintiffs' cases, despite the fact thatthe evidence; testimony; and legal argument advanced by myclients differed from that offered by the other Plaintiffs.The adverse impact upon my clients of Judge Malihi's erroneousissuance of a single "Decision" as to all Plaintiffs is
Honorable Brian P. Kemp
February 7, 2012Page Two
immediately apparent when one reviews certain alleged "facts"which were "considered" by Judge Malihi ("Decision," p. 6).Specifically, Judge Malihi found as "fact": 1) that DefendantObama was born in the United States; and 2) that DefendantObama's mother was a citizen of the United States at
the
time of
Defendant's birth. Both of these "facts" found by Judge Malihiconstitute a second significant flaw in the judge's ruling andserve as the stated factual basis for his erroneous conclusionthat Defendant Obama is eligible for the presidency.Simply put, a review of the record in my clients' above
-
captionedcases reveals
no evidence of Defendant's place of birth and no
evidence of Defendant's mother's citizenship at
the time of
Defendant's birth.
My clients did not enter into evidence anycopy of Defendant Obama's purported birth certificate in
these
cases.
And while my clients' evidence
did include a copy of the
divorce proceedings between Defendant Obama's parents, and whilethese divorce records did establish the identities
of Defendant's
parents and the date of Defendant's birth, the divorce recordsdid not establish the location of Defendant's birth or
the
citizenship of his mother at the time of his birth.As you know, Defendant Obama and his attorney, Michael Jablonski,failed to appear for the trial
of these actions
and failed to
submit any evidence or testimony into the record. Moreover, they
failed to appear notwithstanding the fact that I timely serveddefense counsel with a Notice to Produce, directing his client toappear at trial and to produce certain documents and items
to
be
used as evidence by the Plaintiffs. Defense counsel, in fact,never objected to the Notice to
Produce and never moved to quash
same. He
simply, and purposefully, ignored it.However, as you are also aware, Mr. Jablonski did attempt to"back door" into the record two (2) electronic images ofDefendant Obama's purported "long form" and "short form" birthcertificates by attaching
same to a letter addressed and emailed
to you on January 25, 2012, the day before the trial, essentiallyinforming you that he and his client would not appear for trial.Nevertheless, Mr. Jablonski's attempt to inject these "documents"into the record is legally ineffective.
O.C.G.A. § 50
-
13
-
15
(1)
provides in pertinent part that "[t]he rules of evidence asapplied in the trial of civil nonjury cases in the superiorcourts shall be followed." Additionally, O.C.G.A. § 50-13-15 (2)provides that "[d]ocumentary evidence may be received in the form
Honorable Brian P. KempFebruary 7, 2012
Page Three
of copies or excerpts if the original is not readily available.
Upon request, parties shall be given an opportunity to compare
the
copy with the original or have it established as documentaryevidence according to the rules of evidence applicable to thesuperior courts of this state"
(emphasis supplied). In the
instant cases, Plaintiffs' Notice to Produce, served on January19, 2012, had already requested Defendant Obama to produce one(1) of the two (2) original certified copies of Defendant's "longform" birth certificate in his possession, as well as allmedical; religious; administrative; or other records of or
relating to Defendant's birth. Of course, Defendant Obama and
his lawyer deliberately ignored Plaintiffs' valid requests, andMr. Jablonski's misguided attempt to inappropriately placedocuments into the record through the "back door" should likewise
be ignored.
A third significant flaw in Judge Malihi's "Decision" is that hecompletely failed to make a determination as to the properplacement of the burden of proof, and he failed to apply the
burden of proof to his factual and legal conclusions. On January
19, 2012, Plaintiffs Swensson and Powell filed a "Motion ForDetermination of Placement of Burden of Proof" in whichPlaintiffs sought an order of the Court, pursuant to Haynes v.Wells, 273 Ga. 106, 108-109, 538 S.E. 2d 430, 433 (2000),requiring Defendant Obama to affirmatively establish his
eligibility for office. Not only did Judge Malihi not rule on
Plaintiffs' motion in advance of trial, as was requested byPlaintiffs, but the judge never even addressed or resolved the
motion in his final ruling. I do note, however, that the judge
did indicate, in an in-chambers meeting at trial with all of theattorneys for the various Plaintiffs, that Defendant Obamaprobably carried the burden of proof in these proceedings.The significance of the Court's failure to rule on the burden of
proof is immediately apparent. The Defendant and his lawyer
failed to attend trial and failed to offer any evidence, and suchfailures were intentional, as shown by defense counsel's letter
of January 25, 2012. If the Defendant did, as Plaintiffs
contend, bear the burden of proof in these cases, then Defendantcan in no way be said to have satisfied his burden, andPlaintiffs are entitled to judgment.Along similar lines, the Defendant's deliberate failure to appearalso constituted an event of default, and Plaintiffs' challengesto Defendant's qualifications should have been sustained on that
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Powell-Swensson vs. Obama, Attorney Hatfield's Letter Brief to Georgia Secretary of State Regarding Decision by Judge Michael Malihi, 2-7-2012
Powell-Swensson vs. Obama, Attorney Hatfield's Letter Brief to Georgia Secretary of State Regarding Decision by Judge Michael Malihi, 2-7-2012
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