Case 2:11-cv-02089-SRB Document 26 Filed 04/30/12 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA LIBERTY LEGAL FOUNDATION; JOHN DUMMETT; LEONARD VOLODARSKY; CREG MARONEY, Plaintiffs v.

Defendants

in Opposition to Defendant Democratic National Committee (DNC) and Defendant Schultzs motion to dismiss.

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every federal and state court to consider the issue. See Def.s Mtn. at 4. However, the

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PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DISMISS Pursuant to this Courts Rules, Plaintiffs submit this Opposition and Memorandum

MEMORANDUM OF POINTS AND AUTHORITIES

Contrary to the Defendants Assertion, No Federal Court has Ruled on the Question Presented Since 1874

The Defendants assert that the issue raised by the Plaintiffs has been rejected by

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NATIONAL DEMOCRATIC PARTY of the USA, Inc.; DEMOCRATIC NATIONAL COMMITTEE; DEBBIE WASSERMAN SCHULTZ,

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Judge: Bolton
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CASE NO: 2:11-cv-02089-SRB

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first five paragraphs of Plaintiffs complaint distinguish the Plaintiffs lawsuit from any other cases to which the Defendants may be referring.

The instant case asserts negligence and fraud against non-governmental defendants. See Plfs. 2nd Amd. Compl. 3. Plaintiffs are unaware of any case that has made such claims, or named non-governmental defendants in relation to their handling of the Article II question presented.

Also contrary to Defendants assertion, the Plaintiffs make no claims questioning the birthplace of Presidential candidate Obama or the citizenship status of his mother. The Plaintiffs complaint does not assert that Mr. Obama is not a citizen of the United States. The Plaintiffs make no assertion regarding candidate Obamas passports, or social security number, or any other fact related to candidate Obama, other than the one fact that his father was not a U.S. citizen. This one fact has been repeatedly admitted by Mr. Obama and by various government agents. Contrary to the Defendants assertions, the issue presented by the Plaintiffs has not

been substantively ruled upon by any Federal Court since 1874. See Minor v. Happersett, 88 U.S. 162, 167 (1874).

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found that the question presented, the meaning of the phrase natural born citizen as a qualification for the Presidency set out in Article II of the Constitution, is important and not trivial. See Ex. 1 at 8-9 (attached).

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Earlier this month the Federal District Court for the Western District of Tennessee

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II.

Defendants Legal Conclusion Regarding the Definition of Natural Born Citizen is Incorrect Defendants motion asserts that there is no question as to President Obamas

status as a natural-born citizenconcluding President Obama is a natural born citizen by virtue of his birth in the United States. Defs. Mot. At 12. The Defendants cite United States v. Wong Kim Ark in support of their conclusion. Id. citing 169 U.S. 649, 702 (1898). However, the holding of Wong Kim Ark (WKA) did not address the definition of the term natural born citizen nor did it address Article II qualifications to serve as President. Id. at 705.

WKA facts did not present a question that required interpretation of Article II. Id. at 653. WKA explicitly addressed the scope of 14th Amendment citizenship. Id. at 705. However, citizenship under the 14th Amendment is legally distinct from natural born citizen as required under Article II for eligibility to serve as President. Just twenty-four years prior to WKA the Supreme Court did define natural born

citizen as that term is used in Article II. Minor v. Happersett, 88 U.S. 162, 167 (1874).

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Unlike WKA, the Minor Court expressly used its definition of natural born citizen to

reach its holding. Id. Because the WKA Court did not need to define Article II natural born citizen to

reach its holding, any inferences drawn from WKA about the term natural born citizen are simply dicta. Blacks Law Dictionary 465 (Bryan A. Garner ed., 7th ed., West 1999)

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The WKA holding did not define the term natural born citizen because the

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(Defining Dictum Gratis as, A courts discussion of points or questions not raised by the record or its suggestion of rules not applicable in the case at bar.)

In contrast, the Minor Courts explicit definition of natural born citizen was part of its holding because that Court explained that defining this term was required in order to reach its conclusion on the matter presented to the Court. 88 U.S. at 167; See also Blacks Law Dictionary 737 (Bryan A. Garner ed., 7th ed., West 1999) (Defining Holding as, A courts determination of a matter of law pivotal to its decision; a principle drawn from such a decision.).

Therefore, the Minor Courts definition of natural born citizen is binding precedent. Blacks Law Dictionary 1195 (Bryan A. Garner ed., 7th ed., West 1999) ([A] case becomes a precedent only for such a general rule as is necessary to the actual decision reached, when shorn of unessential circumstances.) (quoting 1 James Parker Hall, Introduction, American Law and Procedure xlviii (1952)). Since dicta cannot change binding precedent, the term natural born citizen under

Article II is defined by the Supreme Courts decision in Minor. The Defendants citation to WKA does nothing to support their assertion that candidate Obama is a natural born

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citizen. Simply being born in the United States does not necessarily make one a natural born citizen. Having a mother that is a citizen of the United States does not necessarily make one a natural born citizen. According to binding precedent from the U.S. Supreme Court, to be a natural born citizen a person must be born in the United States

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of two parents that are U.S. citizens at the time the natural born citizen is born. Minor, 88 U.S. at 167.1

The Defendants assert that the Minor Court left open the question of whether a child born to alien parents is a natural born citizen, and state that it was not necessary for the Minor Court to resolve doubts on this point. See Defs. Mot. At 13. This is a misrepresentation. While the Minor Court followed its definition of natural born citizen with a statement that there have been doubts about the broader class of people identified as citizen, a plain-language reading of the Courts sentence leaves no doubt that the Court was not implying doubt regarding its definition of natural born citizen. 88 U.S. at 167. Any doubt on this point is negated by simply reading the next sentence of the opinion clarifying that there have never been doubts as to the narrower class of natural born citizens. Id.

discussion of the broader term citizen at the beginning of the Courts opinion. Id. at 166. The Court concludes its discussion of the term citizen by stating, When used in this sense it is understood as conveying the idea of membership of a nation, and nothing

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more. Id. The Court, therefore, clearly established that the term citizen in its opinion was to be understood to be very broad. With this in mind, the Minor Courts statement is unambiguous: it established two distinct classes of people, citizens and natural born

The WKA Court recognized that the facts presented in that case didnt give that Court an opportunity to change the definition of Article II natural born citizen. This is why the WKA Court expressly identified its holding as its holding. 169 U.S. at 705. The WKA holding is very narrowly tailored to the facts addressed in the WKA case, and never mentions the term natural born citizen. Id.
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This understanding of the Minor Courts statement is supported by its extensive

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citizens; citizen is a broad term that is inclusive of all natural born citizens; as to the outer limits of the term citizen there are doubts; and as to the definition of natural born citizen there have never been doubts. Id.

Venerable rules of construction also prevent use of any dicta from the WKA Court to overrule the Minor Courts precedential definition of natural born citizen. As Chief Justice Marshall explained in Marbury v. Madison, It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it. 5 U.S. 137, 174 (1805). This principal is also applied to statutory construction: When there are two acts upon the same subject, the rule is to give effect to both if possibleThe intention of the legislature to repeal must be clear and manifest. United States v. Borden Co., 308 U.S. 188, 198 (1939). This venerable principal is still in use: The Courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. Morton v. Mancari, 417 U.S. 535, 551 (1974); See also United States v. Tynen, 78 U.S. 88 (1870); Hendersons Tobacco, 78 U.S. 652,

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657 (1870); General Motors Acceptance Corp. v. United States, 286 U.S. 49, 61 (1932); Wood v. United States, 41 U.S. 342, 362-363 (1842). The Minor Courts definition of Article II natural born citizen co-exists with the

WKA Courts determination of the scope of 14 th Amendment citizenship. By contrast, the

Defendants insistence that WKA overturns Minor would leave Article II natural born citizen with no independent meaning from the 14th Amendments citizen.
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This conclusion is not changed by the fact that naturalized citizens can be distinguished from 14th Amendment citizens. Each legal term, naturalized citizen, 14th Amendment citizen, and Article II natural-born-citizen, must be given independent meaning if such independent meaning can be given. Marbury, 5 U.S. at 174; Borden Co., 308 U.S. at 198.

Again, the WKA dicta cannot grant Article II natural born citizen status to candidate Obama. 2 The Defendants motion to dismiss for failure to state a claim upon which relief can be granted, must be DENIED. III.

Defendants 12(b)(6) Argument Fails

All of Plaintiffs factual allegations contained within their complaint must be taken as true for purposes of Defendants motion to dismiss. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 249 (2009).

citizen at the time of Mr. Obamas birth. Mr. Obama has admitted this fact. 2nd Amd. Compl. 10. The Constitution of the United States mandates No person except a natural

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born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President; and the United States Supreme Court has defined Article II natural born citizens as all children born in a country of parents who were its citizens. Art. II sec. 1; Minor v. Happersett, 88 U.S. 162, 167 (1875). Taking as true the fact that candidate Obamas father was not a U.S. citizen at the See Proposed Or., Welden v. Obama, GA OSAH Case #1215137-60, attached as Ex. 2.
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Plaintiffs Complaint alleges that Mr. Obamas father was not an American

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time of candidate Obamas birth, candidate Obama can never be a natural born citizen as required by Article II, and therefore is not constitutionally qualified to serve as President. Id.

The Defendants own citations support the conclusion that WKA does not define the Article II term natural born citizen. See Defs. Mot. at 12-13 (Describing WKA as holding that a person born to non-citizens from China was a citizen of the United States,)(emphasis added) (and twice quoting WKA: [e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen,) (emphasis added). The WKA Court knew the difference between the terms citizen and the legally distinguishable term natural born citizen, yet it chose to use only the term citizen in its holding. Had it meant to alter the Article II term it would not have limited its holding to the term citizen.

can be granted, must be DENIED. IV. Plaintiffs Have Standing to Bring Suit

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Cir. 1990).

standing to challenge the eligibility of rival candidates for the same office. Drake v. Obama, 664 F.3d 774, 782-783 (9th Cir. 2011) (citing Owen v. Mulligan, 640 F.2d 1130, 1132-33 (9th Cir. 1981). Specifically, the Drake Court ruled that an independent candidate for President of the United States has standing to challenge the constitutional qualifications of candidate Obama. Id. citing Fulani v. Hogsett, 917 F.2d 1028, 1030 (7th

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The Defendants motion to dismiss for failure to state a claim upon which relief

Last December the 9th Circuit ruled that political candidates for office have

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Defendants acknowledge that Plaintiff Dummett has alleged that he is an independent candidate for the office of U.S. President, and that he is registered with the Federal Election Commission as such. Defs. Mot. At 6. Taking these allegations as true, Plaintiff Dummett clearly has standing to challenge candidate Obamas constitutional eligibility to hold the office of President.

After acknowledging Plaintiff Dummetts allegations and the on-point binding precedent, Defendants incorrectly assert that Plaintiffs do not allege that any defendant has engaged in a practice that would provide President Obama with an unfair advantage in the election process. Id.

Plaintiffs complaint alleges that The Democratic Party will send documents to the Secretaries of State for all 50 states announcing that Mr. Obama is its Presidential nominee for the 2012 general election and falsely representing that he is qualified to hold

(DNC) is a subdivision of the Democratic Party responsible for organizing the national convention, certifying candidates, and other executive and administrative organizations of the Democratic Party. Id. at 37. Said documents will be signed by Defendant

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Schultz. Id. at 53. Upon receipt of said document, and in reliance upon the false

representations made by the Democratic Party and its agents in said document, the Secretaries of State for the 50 states will be required to have Mr. Obamas name placed on ballots in all counties for the office of President of the United States. Id. at 55. And

that Absent the requested relief, Plaintiffs Dummett and Volodarsky will be irreparably harmed because the appearance [of] Mr. Obamas name on Ballots for the 2012 general
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the office of President. 2nd Amd. Compl. 52. The Democratic National Committee

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election would result in votes for Mr. Obama that would otherwise be cast for Mr. Dummett or Mr. Volodarsky. Id. at 57. These are exactly the types of allegations supporting standing that the 9th Circuit referred to in Drake v. Obama and Owen v. Mulligan. 664 F.3d at783; 640 F.2d at 1132-33.

While it is far from clear, the Defendants motion must be taken to assert that the Plaintiffs allegations fail because they are not directed at candidate Obama, but are instead directed toward the Democratic Party and its agents and subdivisions. However, as established by the facts alleged, the actions of the named Defendants, as asserted and taken to be true, will clearly and directly result in specific harm to Plaintiff Dummett, just as in Drake and Owen. The named Defendants will send documents to the 50 states certifying that candidate Obama is constitutionally qualified to hold the office of President. 2nd Amd. Compl. 52. The Secretaries of State for the 50 States will rely upon the false statements of the named Defendants and will be required to place candidate Obamas name on the ballot. Id. at 55 & 10-13. The Defendants actions will cause the same harm to Plaintiff Dummett as that which created standing for the Plaintiffs in Drake and Owen. Id. at 57.

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Plaintiffs complaint includes allegations of facts that have not yet occurred. However, this distinction also fails to destroy standing. Standing depends upon the probability of harm, not its temporal proximity. See

520 S. Mich. Ave. Assocs. V. Devine, 433 F.3d 961, 962 (7th Cir. 2006). Immediacy requires only that the anticipated injury occur within some fixed period of time in the
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Defendants unclear assertion could also be read to rely upon the fact that

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future, not that it happen in the colloquial sense of soon or precisely within a certain number of days, weeks, or months. Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008).

For the purposes of this motion all of Plaintiffs factual allegations contained within their complaint must be taken as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 249 (2009). For the purposes of the instant motion it must be taken as true that the Defendants will send documents to the 50 states certifying that candidate Obama is constitutionally qualified to hold the office of President. 2nd Amd. Compl. 52. The Secretaries of State for the 50 States will rely upon the false statements of the named Defendants and will be required to place candidate Obamas name on the ballot. Id. at 55 & 10-13. The temporal issues vaguely referred to in Defendants motion do nothing to defeat standing because the alleged facts are certain to occur. If the allegations are not true, and the Defendants do not plan to send the alleged certifications to the 50 States, then the Defendants should have no objections to this Court ordering an agreed judgment prohibiting the Defendants from sending such certifications.

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to bring suit on behalf of its members when: a) its members would otherwise have standing to sue in their own right; b) the interests it seeks to protect are germane to its organizations purpose; and c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Cmmn, 432 U.S. 333, 342 (1977). This lawsuit is germane to LLFs purpose
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Regarding Liberty Legal Foundations (LLF) standing, an association has standing

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because protection of individual rights and state sovereignty as established in the Constitution is necessary for the protection of basic human rights. Participation of all LLF members is not required because LLF represents its members common interests in opposing violations of federal law and the U.S. Constitution. Most importantly, LLF has members that would otherwise have standing to sue in their own right that will suffer specific and concrete harm as a direct result of the Defendants actions. Specifically, Mr. Dummett and Mr. Volodarsky are members of LLF. Therefore, LLF has standing in the instant case.

Finally, and most importantly, only one Plaintiff needs to have standing in order to maintain a suit. Massachusetts v. EPA, 549 U.S. 497, 518 (2007). Because Plaintiff Dummett has standing, all other Plaintiffs in the instant case, including Liberty Legal Foundation, also have standing. The Defendants motion to dismiss for lack of standing must be DENIED. V.

inapplicable to the instant case. Defs. Mot. At 8; citing 567 F. Supp. 2d at 1147. First,

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Robinson and 3 U.S.C. 15 address the rights and responsibilities of delegates to the electoral college, not Presidential candidate plaintiffs. More importantly, if Robinson had been applicable to the facts at bar, it has been overturned by Drake v. Obama. 664 F.3d 774, 782-783 (9th Cir. 2011). Robinson held that [j]udicial review - if any should occur only after the electoral and Congressional processes have run their course. 567 F. Supp. 2d at 1147. However, the Drake Court held that such claims would be justiciable before
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Ripeness

Contrary to Defendants assertion, Robinson v. Bowen and 3 U.S.C. 15 are

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an election, but moot after the election had been held. 664 F.3d at 784. The 9th Circuits ruling that such challenges would be moot after the election precludes the District Courts holding that such challenges are not ripe before the election.

To determine ripeness courts must consider whether there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).

Earlier this month the Western District of Tennessee held that the legal dispute over the Constitutions definition of natural born citizen and the Supreme Courts decision in Minoris substantial. Ex. 1 at 8. In the instant case the acts alleged reflect the procedures taken by the named Defendants in every Presidential election for decades. The acts alleged are identical to acts taken by the named Defendants prior to the 2008 election of candidate Obama. Therefore, the acts alleged are immediate and real. The fact that the Defendants have not yet performed the acts alleged does not deny

this Court jurisdiction. To argue otherwise would deny the well-established fact that

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Courts regularly issue preemptory orders in order to prevent harm before it occurs. The Defendants assertion that they cannot be prohibited from lying to State

officials simply because they havent yet lied to the State officials is analogous to telling this Court that it doesnt have jurisdiction to issue an order prohibiting a party from cutting down a tree because the tree has not yet been cut down. The instant case is ripe because the Defendants are certain to act as alleged in the complaint, absent this Courts
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order prohibiting the Defendants from acting. The Defendants motion to dismiss for lack of ripeness must be DENIED. VI.

This Court Has Personal Jurisdiction

Plaintiffs complaint alleges that the Defendants will make false statements in certifications to be sent to the Secretaries of State for all 50 States. 2nd Amd. Compl. at 52-55. The Plaintiffs request that this Court take judicial notice that Arizona is one of the 50 states.

The act of sending a certification to the Arizona Secretary of State, certifying that candidate Obama is qualified to hold the office of President, knowing that such certification is required to have the Arizona Secretary of State place candidate Obamas name on Arizona ballots, obviously qualifies as purposefully directing activities to the forum. It also undeniably qualifies as availing the Defendants of the privilege of conducting activities in the forum. The claims in the instant case arise directly out of the Defendants activities of

sending a certification to the Arizona Secretary of State. At most the Defendants assertion of lack of personal jurisdiction amounts to an

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DENIED.

assertion that a necessary party has not been joined. However, even if that were true, the appropriate remedy would not be dismissal. The appropriate remedy would be to allow joinder of the necessary party. See Fed. R. Civ. Pro. 19 & 20. The Defendants motion to dismiss for lack of personal jurisdiction must be

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VII.

Right-to-Associate Precedent Doesnt Support Defendants Motion

The Defendants are correct that The Democratic Party has a Constitutional Right to Nominate Whomever it Chooses as its Candidate for President of the United States. However, that right does not give the Defendants the additional right to certify to the 50 States that its candidate is constitutionally qualified to hold the office of President when their candidate is actually not constitutionally qualified to hold the office of President. In other words, the Defendants constitutional right to freedom of association does not grant them the additional right to lie to the 50 States.

Contrary to the Defendants assertion, the Plaintiffs are not challenging the Democratic Partys right to select a standard bearer who best represents the partys ideologies and preferences. Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000). Instead, the Plaintiffs are pointing out that the Defendants right to select a candidate

officers of the 50 States.

partys right to misrepresent facts with impunity. The Defendants argue that a political

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partys right to determine who will be a member of the party somehow also grants the party a Constitutional right to lie to the States. No precedent supports this argument. The right to associate has been interpreted to allow private groups to determine

who will and will not be members of the group. Jones, 530 U.S. at 575; Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, no court has
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does not grant them an additional right to misrepresent their candidates qualifications to

The Defendants argument morphs right-to-associate precedent into a political

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extended this right beyond the confines of the private organization. A party can determine who it will include as members. That party can also determine which of those members will be its candidates. However, nothing in the Constitution or freedom-to-associate precedent extends this right to support the Defendants assertion that they have a right to lie to the States.

Several right-to-associate cases did involve candidates exclusion from ballots. See Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, all of these cases are exactly opposite to the present situation. All involved political parties excluding a candidate because the party didnt want to be associated with the candidate. In every case cited the candidate sued the party and/or state for inclusion on the ballot after being excluded.

a Constitutional right to certify false facts as true. Such precedent would place the political partys right-to-lie above the rights of the States and the citizens to not be defrauded. Such precedent would negate any obligation for the political parties to ensure

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that certifications sent by them to State officers reflect true statements. Such precedent would negate any purpose for the States to require such certifications. The Plaintiffs requested relief does nothing to interfere with the rights of the

parties to select candidates. The Democratic Party is free to choose Saddam Hussein or Mickey Mouse as their next Presidential candidate. However, they do not have a constitutional right to submit fraudulent or grossly negligent certifications to state
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There are no cases where a political partys decision to support a candidate created

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officials about their candidates. In the instant case the Plaintiffs requested relief does nothing to infringe on the Democratic Partys right of association because the Party can include candidate Obama, or any other individual, in its organization. The Party can choose Mr. Obama, or any other person, to be its standard bearer. The Partys rights, however, end there.

The parties Constitutional right to select candidates ends with their right to select candidates. It does not automatically create additional rights to knowingly lie to the States.

Since many candidates have been excluded from ballots for lack of qualification to hold the office sought, we can safely conclude that the Defendants argument fails. The Defendants motion to dismiss for failure to state a claim upon which relief can be granted, must be DENIED. VIII. Conclusion

DENIED.

Respectfully submitted on the 9th Day of Ziv, in the year of our Lord 2012 (a.k.a. April

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30, 2012). _s/Van R. Irion_________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiffs (423) 208-9953
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For the reasons set forth herein, the Defendants motion to dismiss must be

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CERTIFICATE OF SERVICE

It is hereby certified that on 9th Day of Ziv, Year of our Lord 2012 (a.k.a. April 30, 2012), a copy of Plaintiffs Opposition to Defendants Motion to Dismiss was filed electronically. Parties may access this filing through the Courts electronic filing system. A copy of this motion will also be served upon the Defendants via mail.

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_s/Van R. Irion_________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiffs (423) 208-9953

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 1 of 22 [Exhibit 2]

OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA DAVID P. WELDEN Plaintiff v. BARACK OBAMA Defendant : : : : : : : : : :

Docket Number: OSAH-SECSTATE-CE1215137-60-MALIHI

PLAINTIFF WELDENS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW DECISION Plaintiff David Welden challenges Defendant Barack Obamas qualifications to run for the office of President of the United States. The Plaintiff presented evidence and argument on January 26, 2012, and the record was closed on that day. Introduction and Findings of Fact The Defendants father was not a U.S. citizen at the time the Defendant was born. Defendants father was a non-immigrant student at the time of the Defendants birth. Pursuant to Article II of the United States Constitution, No person except a natural born citizenshall be eligible to the office of President. U.S. Const. art. II, 1, 5. Plaintiff contends that the term natural born citizen means born in the United States of parents that were themselves United States Citizens. Defendant has presented no argument on the substance of the issue at hand.1 For the reasons stated below, the Court has determined that Defendant does not meet the Constitutional requirements to run for the office of President of the United States.

The Defendant and the Defendants attorney failed to attend the January 26 hearing despite having previously appeared in this matter via the filing of several documents with this Court in this matter, and despite having received ample notice of said hearing. The Defendants failure and his attorneys failure to appear is discussed further below.

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 2 of 22 [Exhibit 2]

Conclusions of Law The United States Constitution (Constitution) states that No person except a natural born citizenshall be eligible to the office of President. U.S. Const. art. II, 1, 5. The United States Supreme Court has interpreted the term natural born citizen to mean a person born in the United States of parents that were themselves United States Citizens. Minor v. Happersett, 88 U.S. 162, 167 (1874). Construction by the United States Supreme Court of terms and clauses within the United States Constitution are binding upon every court in this country. Marbury v. Madison, 5 U.S. 137 (1805). The Minor Courts definition of the article II term natural born citizen was pivotal to its decision, and is therefore part of the Minor Courts holding. See Blacks Law Dictionary 737 (Bryan A. Garner ed., 7th ed., West 1999) (see also Id. at 1195 defining precedent and quoting James Parker Hall, American Law and Procedure xlviii (1952); see also Id. at 465, distinguishing dictum gratis). As such, the Minor Courts definition of natural born citizen is precedent, binding upon all courts in this country. Marbury, 5 U.S. 137. Further, Georgia Election Code states: Every candidate for federal and state officeshall meet the constitutional and statutory qualifications for holding the office being sought. O.C.G.A. 21-2-5(a). Chapter 2 of Title 21 also states: This chapter shall apply to any general or special election in this state to fill any federal, state, county, or municipal office, to any general or special primary to nominate candidates for any such office, and to any federal, state, county, or municipal election or primary for any other purpose whatsoever, unless otherwise provided. Therefore, the Court concludes that because the Defendants father was not a United States Citizen at the time the Defendant was born, the Defendant is not a natural born citizen under article II of the Constitution. Because the defendant does not meet the Constitutional

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 3 of 22 [Exhibit 2]

qualifications for holding the office being sought, the Defendant should not appear on any ballot for any election within this State as a candidate for the office of President of the United States.

I.

Effect of Default: Findings on the Merits in the Absence of Defendant This Court is required to determine the merits of the issues presented by the Plaintiff,

regardless of the absence of the Defendant and entry of a default judgment against the Defendant. Administrative Rule of Procedure 616-1-2-.30(1) states in relevant part: A default order may be entered against a party that fails to participate in any stage of a proceeding, a party that fails to file any required pleading, or a party that fails to comply with an order issued by the Administrative Law Judge. The rule continues: After issuing a default order, the Administrative Law Judge shall proceed as necessary to resolve the case without the participation of the defaulting party, or with such limited participation as the Administrative Law Judge deems appropriate, and shall determine all issues in the proceeding, including those affecting the party in default. Id. at (2)(emphasis added). Due to the Defendants and Defendants attorneys failure to appear this Court will enter a default judgment against the Defendant in the instant matter. However, this Court is also required to resolve the factual and legal issues presented and include such findings and conclusions with its entry of default judgment. Accordingly, the Court concludes as follows.

II.

Minor v. Happersett, 88 U.S. 162 (1874) In Minor v. Happersett the United States Supreme Court was presented the question: does

the 14th Amendment grant all citizens the right to vote? Minor, a woman living in Missouri, challenged that states constitutional prohibition against women voting. The Court held that 3

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 4 of 22 [Exhibit 2] women could be citizens before ratification of the 14th Amendment, but that the 14th Amendment created no new privileges or immunities. 1. Minor Courts Definition of Natural Born Citizen Under Article II 2 The United States Supreme Court defined the term natural born citizen in Minor v. Happersett. 88 U.S. at 167. The Minor Court established that 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. Id. It is clear that the Minor Court was referring to the term natural born citizen, as it appears in article II of the Constitution because, in the paragraph preceding the definition quoted here, that Court quoted the article II requirement that the President must be a natural born citizen. The Minor Courts definition of natural born citizen is immediately followed by a statement that there have been doubts about the broader class of people identified as citizens. Id. However, this statement is immediately followed by the clarification that there have never been doubts as to the narrower class of natural born citizens. Id. This understanding of the Minor Courts statement is supported by its extensive discussion of the broader term citizen at the beginning of the Courts opinion. Id. at 166.The Court concludes its discussion of the term citizen by stating, When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more. Id. The Court, therefore, clearly established that the term citizen in its opinion was to be understood to be very broad. With this in mind, the Minor

Nothing in this opinion should be read as an attempt to independently construe of the United States Constitution. To the contrary, this section and the following section of this opinion are intended to show that this Court is simply applying the construction established by United States Supreme Court precedent.

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 5 of 22 [Exhibit 2] Courts statement is unambiguous: it established two distinct classes of people, citizens and natural born citizens; citizen is a broad term that is inclusive of all natural born citizens; as to the outer limits of the term citizen there are doubts; and as to the definition of natural born citizen there have never been doubts. Id. The Minor Courts definition of the term natural born citizen uses the term parents. This is the plural form of the term parent. Had the Court intended to indicate natural born citizen status could be conferred upon an individual with one citizen parent, the Court could have used the term parent instead of parents. The Court could also have identified a specific parent using the terms father or mother. It did not use the terms mother, father, or parent. Instead it chose to use the plural term parents. The plain language meaning of this term indicates a requirement for both parents to be citizens.

2. Precedential Status of the Minor Courts Definition of natural born citizen In order to reach its holding, the Minor Court first had to determine whether Mrs. Minor was a citizen. It explicitly did so by determining that she was a natural born citizen: For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. Id. at 167. Because both of Mrs. Minors parents were U.S. citizens at the time she was born, and she was born in the U.S., she was a natural born citizen. Because all natural born citizens are also within the broader category citizen, Mrs. Minor was a citizen. The Minor Courts decision to establish that Mrs. Minor was a citizen because she was a natural born citizen followed the well-established doctrine of judicial restraint. Judicial restraint required the Minor Court to avoid interpreting the citizenship clause of the 14 th Amendment if

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 6 of 22 [Exhibit 2] the circumstances presented in the case at hand didnt require the Court to construe the 14th amendments citizenship clause in order to reach its holding. The facts presented didnt require such an interpretation, so the Court didnt reach the 14th amendments citizenship clause. But this restraint did require the Court to conclude that Mrs. Minor was a citizen via its definition of natural born citizen and its conclusion that all natural born citizens are within the broader category of citizens. This is why it made the statement For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. Id. at 168. In other words, the Minor Courts definition of natural born citizen was pivotal to reaching its holding. The Court then discussed several other types of citizenship as general examples of its conclusion that women could be citizens. However, it then returned to the specific case of Mrs. Minor, concluding: The fourteenth amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment. She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship. Id. at 170. Because the Minor Courts definition of natural born citizen was pivotal to reaching its holding, the Courts definition is part of its holding and is, therefore, also precedent. See Blacks Law Dictionary 737 (Bryan A. Garner ed., 7th ed., West 1999) (see also Id. at 1195 defining precedent and quoting James Parker Hall, American Law and Procedure xlviii (1952); see also Blacks Law Dictionary at 465, distinguishing dictum gratis).

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 7 of 22 [Exhibit 2]

III.

Congressional Power to Naturalize Article I of the United States Constitution grants Congress power To establish uniform

rules of naturalization. However, this power does not alter or effect the article II requirement that No person except a natural born citizenshall be eligible to the office of President. U.S. Const. art. II, 1, 5. It is well established that Congressional authority does not include authority to alter the Constitution unless it follows the steps required to amend the Constitution, as established within article V. See Amd. X. Therefore, all acts of Congress made pursuant to its article I authority to naturalize have no effect upon the Supreme Courts construction of article I regardless of any attempt by Congress to establish a different definition of natural born citizen. All federal code, regulations, resolutions, and other acts of Congress are simply irrelevant to the analysis at hand because Congress has no authority to alter article II except through the amendment process.

IV.

Fourteenth Amendment The 14th amendment to the Constitution created a third independent path to citizenship.

However, the amendment did not alter or effect the article II requirement that No person except a natural born citizenshall be eligible to the office of President. U.S. Const. art. II, 1, 5. The Supreme Court established the relevant rule of Constitutional construction in Marbury v. Madison: It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such a construction is inadmissible. 5 U.S. 137, 174 (1805). This rule is still in effect and a similar rule is used for statutory construction: When there are two acts upon the same subject, the rule is to give effect to both if possibleThe intention of the legislature to repeal must be clear and manifest. United States v. Borden Co., 308 U.S. 188, 198

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 8 of 22 [Exhibit 2]

(1939). See also, Morton v. Mancari, 417 U.S. 535, 551 (1974); United States v. Tynen, 78 U.S. 88 (1870); Hendersons Tobacco, 78 U.S. 652 657 (1870); General Motors Acceptance Corp. v. United States, 286 U.S. 49, 61 (1932); Wood v. United States, 41 U.S. 342, 362-63 (1842). Nothing in the language of the 14th amendment expressly alters the language or construction of the term natural born citizen. In fact, neither the term natural born citizen, nor the requirements to serve as President are mentioned in the 14 th amendment. Also, the 14th amendment establishes a path to citizenship. If individuals that qualify as citizens under the 14 th amendment are construed to qualify to run for President, then the term natural born citizen establishing a distinct qualification for holding the office of President under article II would lose its distinction from the term citizen as required to hold the offices of Senator and Member of the House of Representatives under article I. This would leave the distinction between the qualifications for President and members of Congress without effect. Such a construction is inadmissible. Marbury, 5 U.S. at 174. More importantly, the Minor Court defined natural born citizen under article II as all children born in a country of parents who were its citizens. The Minor Courts holding and definition was established after the 14th amendment had been ratified, proving that the amendment didnt alter this definition. 88 U.S. at 167. This is further proved by the holding of the Minor Court that The amendment did not add to the privileges and immunities of a citizen. Id. at 171. Therefore, if an individual was not qualified to hold the office of President under article II before the amendment, then he or she was not qualified after the amendment. Id.

V.

Wong Kim Ark, 169 U.S. 649 (1898).

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 9 of 22 [Exhibit 2] The Supreme Courts decision in Wong Kim Ark (WKA) did not alter or negate the definition of natural born citizen as established by the Minor Court. Compare United States v. Wong Kim Ark, 169 U.S. 649 (1898) with Minor, 88 U.S. 162. The holding of WKA answered the narrow question that was avoided by the Minor Court: namely construction of the citizenship clause of the 14th amendment. A review of the holding from WKA confirms this conclusion: the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor 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 of the Constitution: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. For the reasons above stated, this court is of the opinion that the question must be answered in the affirmative. 169 U.S. at 705 (emphasis added). Rather than construing the definition of the term natural born citizen under article II, the WKA Court was construing the term citizen under the 14 th Amendment. Regardless of the answer to the question answered by the WKA Court, it does nothing to change the requirements for the office of President. To conclude that the WKA court altered the definition of natural born citizen under article II would require a conclusion that dicta alters established precedent. This is simply not the rule. Dicta is persuasive. Where the reasoning in dicta is logical and well supported, and where it does not conflict with precedent, it can be followed at the discretion of other courts. However, where dicta directly conflicts with precedent it cannot be followed by lower courts.

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 10 of 22 [Exhibit 2] Had Mr. Wong Kim Ark been a natural born citizen then he wouldnt have had to resort to the 14th Amendment in order to be found a citizen. Because Mr. Ark was not a natural born citizen, the WKA court had no reason to construe the term natural born citizen in order to answer the question: Was Mr. Ark a citizen under the 14 th amendment? Therefore, any discussion within the WKA opinion that could possibly be construed to alter the article II term natural born citizen, was unnecessary to reach the WKA holding, and was dicta. See Blacks Law Dictionary 465 (Bryan A. Garner e., 7th ed., West 1999)(defining Dictum Gratis). To conclude that the WKA court altered the definition of natural born citizen under article II would also require a conclusion that the WKA court intended to completely ignore the rules of Constitutional construction established by the Marbury Court, as discussed above. Nothing in WKA implies an intent to leave no distinction between the requirements to hold the office of President and the requirements to hold the office of Senator. If WKA changed the definition of natural born citizen established by the Minor Court, then the distinction between the requirements to hold the office of President and the requirements to hold the office of Senator would be eliminated. This would leave article II section 1 paragraph 5 without effect. Finally, to conclude that the WKA court altered the definition of natural born citizen under article II would also require a conclusion that the WKA court intended to overturn Minors holding that the 14th amendment didnt create any new privileges or immunities. Mr. Ark certainly was not qualified to run for president before the 14 th amendment was ratified. So, to conclude that he was a natural born citizen after the 14 th amendment not only runs contrary to the holding of the WKA Court, it also requires Minor to be overturned. Such a conclusion is not suggested by WKA, or any decision of the Supreme Court since WKA.

10

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 11 of 22 [Exhibit 2]

The holdings from Minor and WKA simply do not conflict. Any other conclusion runs contrary to every rule of construction and is not supported by any subsequent precedent from the Supreme Court.

VI.

Facts Established 1. Defendants Burden While the Defendant and his attorney violated an order of this Court to appear at the

January 26th hearing, the Defendant did file documents raising an argument that the burden of proof lies with the Plaintiff in this case. For the reasons discussed here, the Court concludes that the Defendant has the entire burden to prove that he is qualified to hold the office for which he is running. The Supreme Court of Georgia has clearly established that it is the affirmative obligation of a candidate to establish his qualifications for office, and that the burden is not upon the challenger. Haynes v. Wells, 538 S.E.2d 430(2000). That holding was relied upon by this court to remove Keith Gross from the Democratic primary ballot, concluding, The burden of proof is entirely upon Respondent to establish affirmatively his eligibility for office. O'Brien v. Gross, OSAH-SECSTATE-CE-0829726-60-MALIHI, at 12 (2008). The Defendant in the instant case asserts that Haynes is inapplicable because that holding rested upon a statutory requirement that candidate Haynes hadnt met. The Haynes Court concluded that the statute created an affirmative burden for Mr. Haynes. The Defendant also cites Patten v. Miller, Westberry v. Saunders, and McLendon v. Everett in support of the principal that the right to hold office is the general rule, ineligibility the exception. Def. BR. at

11

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 12 of 22 [Exhibit 2]

1, citing 190 Ga 123, 139 (1940); 250 Ga. 240, 241 (1982); 205 Ga. 713, 713 (1949), respectively. As in Haynes, the instant challenge is founded upon statutory requirements that Every candidate for federal and state officeshall meet the constitutional and statutory qualifications for holding the office being sought. O.C.G.A. 21-2-5(a). Said statutory requirements create the same affirmative burden to prove eligibility as the statute at issue in Haynes. Also, the cases cited by the Defendant have been overruled by subsequent legislation, at least as they apply to the instant challenge. (See 1998 Ga. Laws Act 697 (S.B.630)). The legislature has authority to add requirements to run for office in this State. The requirements established by 21-2-5 were established after the cases cited by the Defendant and the new version of the statute was construed by the Georgia Supreme Court in Haynes. (See Id.; See also 538 S.E.2d 430(2000)). Accordingly, the Court finds that he burden of proof is entirely upon Defendant to establish affirmatively his eligibility for office. 2. Facts Established 3 Based on the record in this case the Court finds that the Plaintiff is an elector qualified to vote for the Defendant in the Georgia state primary for the office of President of the United States. The Court further finds that the Plaintiff filed a timely challenge pursuant to 21-2-5 to the Defendants Constitutional qualifications to hold the office of President of the United States. Further, based upon testimony of two witnesses and submission of three exhibits, the Court concludes that the Defendants father was not a United States citizen at the time the Defendant was born.

Because the Defendant and his attorney failed to appear at the January 26 hearing, the evidence submitted by the Plaintiff was entered unopposed.

12

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 13 of 22 [Exhibit 2] The Plaintiffs exhibits included copies of the Defendants birth certificate, statements from a book written by the Defendant, and a U.S. Department of Justice immigration document obtained through a Freedom of Information Act request. The Defendants birth certificate indicates that the Defendants father was born in Kenya and that the Defendant was born in 1961. The Department of Justice document indicates that the Defendants father was an F-1 non-immigrant student visiting the United States as a non-citizen in 1962. The relevant statements in the book authored by the Defendant indicate that the Defendants father had his passport revoked by the government of Kenya in 1967 and as a result was unable to leave Kenya in 1967. This evidence is sufficient to establish that the Defendants father was not a U.S. citizen when the Defendant was born in 1961. These conclusions are further supported in light of the Defendants refusal to comply with this Courts order to appear. The Defendants contumacious conduct denied the Plaintiff the opportunity to obtain testimony from the Defendant further supporting the Plaintiffs factual assertions. The Defendants failure to appear also resulted in the Defendant failing to offer any opposition to the evidence presented.

VII.

Constitutional Right To Associate The Defendant also filed a motion to dismiss arguing that 21-2-5 as applied to the

instant challenge interferes with the Georgia Democratic Partys right to associate as protected by the United States Constitution. For the reasons set forth here, the Court concludes that the Defendants argument fails. The right to associate has been interpreted to allow private groups to determine who will and will not be members of the group. Democratic Party of U.S. v. Wisconsin, 450 U.S. 107

13

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 14 of 22 [Exhibit 2] (1981); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, no court has extended this right beyond the confines of the private organization. A party can determine who it will include as members. That party can also determine which of those members will be its candidates. However, nothing in the Constitution or precedent forces a State to accept a partys selection of candidates for appearance on a ballot.4 Several right-to-associate cases did involve candidates exclusion from ballots. See Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, all of these cases are exactly opposite to the present situation. All referenced cases involved political parties excluding a candidate because the party didnt want to be associated with the candidate. In every case cited the candidate sued the party and/or state for inclusion on the ballot after being excluded. There are no cases where a political partys decision to support a candidate created a Constitutional right to force a State to not only accept that decision but to also accept that candidate and place the candidate on a ballot. Such precedent would place the political partys authority above that of the state. This is why no such precedent exists. It is true that some states lack election codes authorizing any state officials to screen candidate selections from political parties. In these states political parties have essentially unfettered authority to determine which candidates appear on ballots. However, these instances represent decisions of the states to not screen candidates. It is the states right to decide how to administer its elections. The fact that some states have decided to not protect their citizens from

While right-to-associate precedent has negated some states restrictive laws for recognizing political parties, these precedent have not forced states to accept all candidates for appearance on ballots without any screening of such candidates. 14

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 15 of 22 [Exhibit 2] unqualified candidates does not mean that other states dont have the right to screen candidates. It simply means that some states have left the screening to the political parties. Georgia has determined that it is in the best interest of its citizens to screen candidates prior to placement on the ballot. See 21-2-5. Right-to-associate precedent does not prevent Georgia from protecting its citizens in this manner. In the instant case the Democratic Party of Georgias Constitutional right to determine its membership coexists with Georgias right to govern Georgia. Georgia code does not interfere with the autonomy of the political partys internal decision making because it does nothing to prohibit the parties from submitting any name to the Secretary of State for inclusion in the Presidential primary. The Party is free to submit any name as their next Presidential candidate. However, Georgia is not required to accept such submissions and waste taxpayer money on ballots where such candidates are clearly not qualified to hold the office sought. Georgia code does not prevent the political parties from submitting any name. Instead the code simply determines what the State does with the Partys list of candidates after the Party has forwarded its list to the State. See O.C.G.A. 21-2 et seq. This code does nothing to prevent any political party from excluding, or including, any person they choose to exclude or include. Nor does it prevent the Party from choosing candidates to submit, in its sole discretion. Georgias code simply exercises the States right to administer elections in a manner that best serves the citizens of the State. In the instant case, Georgias Election code does nothing to infringe on the Democratic Party of Georgias right of association because the Party can and did include the Defendant in its organization. The Party can and did include the Defendant in the Partys list of candidates. The Partys rights, however, end there. Its rights cannot force the State to place the Defendants name

15

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 16 of 22 [Exhibit 2] on a ballot after the State determines that the Defendant is not qualified to hold the office sought. 21-2-5. The rights of the Party and of the State simply do not conflict.

VIII. Constitutional Qualifications are Unaffected by Popular Vote The Defendants motion to dismiss also asserted that the issues raised by the Plaintiff were soundly rejected by 69,456,897 Americans in the 2008 elections. See Def.s Mtn. at 5. This statement reflects a lack of understanding regarding Constitutional protections. Contrary to the Defendants assertion, voters are not the final arbiters of whether an individual is qualified to hold office. In a Constitutional Republic the power of the majority is limited and cannot infringe upon protected rights of a minority. The Constitution is an anti-majoritarian document; meaning that it protects individuals from invasions and usurpations by the majority. Constitutionally protected rights are held inviolate regardless of the majoritys desire to violate them. Without such protections, any law could be enacted simply because it becomes popular. This would be true even if such law denied an individual their right to life, liberty, or property. Without the anti-majoritarian protection of the Constitution, Congress could legalize the killing of all Jews, for example, as was done in World War II Germany. Constitutional requirements are absolute, and must be followed regardless of how popular or unpopular such requirements may be, because they are in place to protect the minority. The Defendants presumption that popular vote overrides the Constitution runs contrary to the Constitution. Contrary to the Defendants statement, a minority of Americans have an absolute right to have Constitutional rights enforced, regardless of how popular or unpopular those rights may currently be.

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Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 17 of 22 [Exhibit 2]

IX.

Statutory Authority The Defendant also asserted that 21-2-5 doesnt apply to Presidential primary elections. Statutory provisions must be read as they are written, and this Court finds that the cases

cited by the Defendant are not controlling. When the Court construes a constitutional or statutory provision, the first stepis to examine the plain statutory language. Morrison v. Claborn, 294 Ga App. 508, 512 (2008). Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning. Six Flags Over Ga. V. Kull, 276 Ga. 210, 211 (2003) (citations and quotation marks omitted). Because there is no other natural and reasonable construction of the statutory language, this Court is not authorized either to read into or to read out that which would add to or change its meaning. Blum v. Schrader, 281 Ga. 238, 240 (2006). Georgia Election Code 21-2-5(a) states: Every candidate for federal and state officeshall meet the constitutional and statutory qualifications for holding the office being sought. This Court has seen no case law limiting this provision, nor found any language that contains an exception for the office of President or stating that the provision does not apply to the Presidential preference primary. Furthermore, as to the application of 21-2-5 to the Presidential primary provisions, Chapter 2 of Title 21 also states: This chapter shall apply to any general or special election in this state to fill any federal, state, county, or municipal office, to any general or special primary to nominate candidates for any such office, and to any federal, state, county, or municipal election or primary for any other purpose whatsoever, unless otherwise provided. O.C.G.A. 21-2-15. This statutory language is clear and inclusive. 17

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 18 of 22 [Exhibit 2]

Accordingly, this Court finds that the Defendant is a candidate for federal office and must, under Code Section 21-2-5, meet the constitutional and statutory qualifications for holding the office being sought.

X.

Authority of this Court Pursuant to the Full Faith and Credit Clause of the Constitution The Defendant has also asserted that this Courts authority to subpoena documents and

order appearance of persons, ends at the borders of the state of Georgia. This is not correct. Article IV of the United States Constitution states in relevant part: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. Accordingly, this Court has authority to order the attendance of persons and to subpoena documents, wherever they may be found, whether within this state or beyond, to the extent allowed by the laws of this state and subject to the limitations thereof as established in the precedent of this states judicial branch and the judicial branch of the United States federal government. U.S. Const. art. IV, 1, 1.

XI.

Defendants Failure to Appear in Violation of this Courts Order This Court issued a subpoena ordering the Defendant to appear and testify at the January

26 hearing and produce certain documents. Defendant filed a motion to quash, which this Court denied for reasons set forth in the Courts denial. On the eve of the hearing, Defendants attorney sent a letter directly to the Secretary of State of Georgia, with copies sent to this Court and attorneys for the Plaintiff. Defendants letter requested that the Secretary of State halt the proceedings of this Court. The letter ended with a statement that the Defendant and his attorney

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Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 19 of 22 [Exhibit 2]

would suspend all further participation in the proceedings of this Court pending a response from the Secretary of State. Later the same day, during the evening of January 25 th, the Secretary of State responded to the Defendant via a letter with copies to this Court and counsel for the Plaintiff. The Secretary of States letter informed the Defendant that the Secretary of State lacked authority under Georgia law to suspend this Courts proceedings. The letter concluded by warning the Defendant that any failure to participate in further proceedings of this Court would be at the Defendants peril. Considering the office currently held by the Defendant, the Defendants request that the Secretary of State halt the proceedings of this Court, coupled with the Defendants willful refusal to comply with an order of this Court, represent a direct threat to the rule of law. The Defendants actions represent a direct threat to the entire judicial branch and the separation of powers between the branches of government. The Defendants decision to completely ignore the authority of this Court is unprecedented. While past Presidents have litigated against subpoenas, in every case those Presidents acknowledged and respected the authority of the judicial branch. In every case those Presidents instructed their attorneys to attend hearings. In every case those Presidents acknowledged rulings with which they disagreed, and either complied with court orders or followed applicable procedures to appeal to higher courts. In the instant case the Defendant did not appeal to a higher Court, and instead instructed the Secretary of State that he would not participate in further proceedings. When the Secretary of State refused to act in an unlawful manner the Defendant ignored the Secretary of State, violated an order of this Court, and

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Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 20 of 22 [Exhibit 2]

apparently instructed his attorney to act in a manner that violates the professional rules of conduct of this State. The Defendants action represents a public denial of the authority of this Court, the laws of this State, and the judicial branch of government as a whole. Such open denial of a separate branch of government by a sitting President amounts to no less than a declaration of total dictatorial authority. Such declaration cannot go without response from this Court. Failure to respond to the Defendants contumacious conduct would amount to an admission that this Court and the judicial branch as a whole do not have the authority granted to them under articles III and IV of the Constitution. The Court finds that the Defendant had sufficient notice of the January 26 hearing, that the Defendant was aware that this Court had ordered his appearance, that the Defendant was aware that his motion to quash this Courts subpoena was denied, and that the Defendant thereafter willfully acted against the orders of this Court to appear. Accordingly, this court finds the Defendant in willful contempt of Court. Pursuant to Administrative Rules of Procedure the Court hereby refers this matter to the Superior Court of Fulton County for confirmation that the Defendant violated Administrative Rules of Procedure 16-1-2-.22 (5) (a), (b), (c), and (f); and to determine appropriate sanctions, taking into consideration the findings and conclusions herein.

Conclusion Based upon the foregoing discussion and analysis, the Court finds that the term natural born citizen as defined by the Supreme Court of the United States, is a person born in the United States of parents that were themselves United States Citizens. The Court also finds that

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Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 21 of 22 [Exhibit 2] the Defendants father was not a United States citizen at the time the Defendant was born. As a result, because No person except a natural born citizenshall be eligible to the office of President, the Defendant is not constitutionally qualified to hold the office of President of the United States. U.S. Const. art. II, 1, 5. Because the Defendant is not constitutionally qualified, he cannot be elected to the office of President regardless of how popular or unpopular he may be with the voters. Therefore, the Defendant should not appear on the ballot for election to the office of President in the primary or general elections in the state of Georgia.

Date:___________________

_____________________________ MICHAEL M. MALIHI, Judge

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Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 22 of 22 [Exhibit 2]

CERTIFICATE OF SERVICE Pursuant to the Order entered in this matter regarding electronic service, I certify that I have served the opposing party in this matter with a copy of Plaintiff Weldens Proposed Findings of Fact and Conclusions of Law by sending a copy via e-mail addressed to: Michael Jablonski Michael.jablonski@comcast.net This the 1st day of February, 2012.

_________________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Dr., Ste. 200 Knoxville, TN 37923 (423) 208-9953 van@libertylegalfoundation.org Attorney for Plaintiff

22