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Powell v Obama, Reply Brief to Petitioner's Motion for Emergency Hearing, Fulton County Superior Court, 2-27-2012

Powell v Obama, Reply Brief to Petitioner's Motion for Emergency Hearing, Fulton County Superior Court, 2-27-2012

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Powell v Obama, Reply Brief to Petitioner's Motion for Emergency Hearing, Fulton County Superior Court, 2-27-2012

Powell v Obama, Reply Brief to Petitioner's Motion for Emergency Hearing, Fulton County Superior Court, 2-27-2012


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Published by: Article II Super PAC on Feb 28, 2012
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IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA KEVIN RICHARD POWELL,Petitioner, vs.BARACK OBAMA RespondentCivil Action File Number2012 CV 211528 ___________________________________
Petitioner’s motion should be denied for four reasons. First, if petitioner believes
that the matters he raises will be moot upon commencement of the election then it isalready moot as voting has started. Second, petitioner is not entitled to a hearing as thestatute relied upon as justification for the appeal does not mandate a hearing; the only requirement is that the Court review the record filed by the Secretary of State. Third,petitioner filed this action against the wrong defendant. The challenge to a decision of the Secretary of State should be filed against the Secretary of State. Fourth, thePresidential Preference Primary is not an election, as no one is elected to anything, but,in the words of the statute, is simply an opportunity for Democrats
“to express theirpreference for one person to be a candidate for nomination.” O.C.G.A. § 21
-2-191. Noone is elected, or even nominated, in the preference balloting. Fifth, neither this Courtnor the Secretary of State can interfere with internal processes of a political party leading to the naming of individuals to appear on the ballot. Thus, this court lackssubject matter jurisdiction to grant the relief sought.
 I. NO EMERGENCY EXISTS AS THE ELECTION IS ALREADY UNDERWAY.Petitioner fears that the Court will decline to rule on its petition once the electionstarts on the grounds that the action is moot. The election has already started. In personearly voting began on February 13. Ballots have been printed, machines have beenprogrammed, and every county in Georgia has begun the process of recordingpreferences so that the political parties can apportion delegates to the nominatingconventions.Petitioner does not state what, if any, harm could be caused from the balloting.No one is elected or nominated. The purpose of the polling is to allow political parties todetermine how the Georgia delegation to the nominating convention apportions pledgeddelegates. Petitioners request to delay balloting would force the Secretary of State toundertake enormous additional costs of running a second election at a later date
allfor no reason.II. O.C.G.A. § 21-2-5(e) DOES NOT REQUIRE ANY HEARING Assuming that the qualification review statute applies
, nothing in O.C.G.A. § 21-2-5(e) requires the Court to hold any hearing.
The statute simply says:The review shall be conducted by the court without a jury and shall be confined to the record. The court shall notsubstitute its judgment for that of the Secretary of State as tothe weight of the evidence on questions of fact.
President Obama maintains that O.C.G.A. § 21-2-5 does not apply to Presidential Preference Primaries because the PPP is not an election
no one is nominated, elected, selected, authorized to take office,qualified, nor is a fee charged as in an election. Under the United States Constitution and the laws of Georgia voters select presidential electors who then select a president. No presidential candidate ever ispresented for election by ordinary voters.
The Georgia Attorney General has taken the position in numerous qualification review proceedings thatno hearing is required by the terms of the statute. Judicial economy suggests that the Court review therecord on its own to determine whether appropriate standards were met.
 Nothing in the statute requires a hearing. The procedure established by thelegislature differs in this regard from the ordi9nary procedure established for SuperiorCourt review of an agency decision, which specifically requires a hearing. See, O.C.G.A. §Section 50-13-19. The Court may act on its own based upon the record before it.III. PETITIONER FILED AGAINST THE WRONG PARTY The request for review pending before this Court names President Obama as therespondent. The relief sought, however, is not relief that the respondent can effect if theappeal is sustained by the Court. The proper party respondent when challenging aqualification decision made by the Secretary of State is the Secretary of State. Theabsence of the Secretary of State from this proceeding is fatal.Petitioner requests relief only against the Secretary of State, not against President
Obama, when he demands a “stay of the Final Decision of the Secretary of State.”
(Petition, p. 8). In order to grant the relief sought by the petitioner the Secretary of Stateneeds to be before the court. He is not. The Civil Practice Act requires the issuance of asummons signed by the clerk of court in order for the court to exercise power.. Theissuance of summons of process signed by the clerk is a necessary part of acquisition of  jurisdiction.
 Schafer v. Wachovia Bank of Georgia
, 248 Ga.App. 466, 546 S.E.2d 846(2001). No summons was issued commanding the appearance of the Secretary of Statein this matter.The failure to serve summons deprive the court of personal jurisdiction over theSecretary of State, and necessarily deprives this Court of jurisdiction to grant the relief sought in the petition.
 Bonner v. Bonner 
, 272 Ga.App. 545, 533 S.E.2d 72 (2000);

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