DAVID M.

NEAL,
Plaintiff,
IN THE COURT OF COMMON PLEAS
COUNTY OF WARREN, STATE OF OHIO
CASE NO. 08CV72726
JENNIFER BRUNNER, et al.,
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MAGISTRATE'S DECISION
Defendants.
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On October 24, 2008, Pro Se P l a i ~ t i f f David M. Neal filed the above-referenced action
against Defendants Jennifer Brunner, Ohio Secretary of State; Howard Dean, Chairman of the
Democratic National Committee; Chris Redfern, Chairman of the Ohio Democratic Party, and
United States Senator Diane Feinstein. The complaint seeks an "injunctive relief order." On
t,hilt same day, Plaintiff filed a motion for a "temporary injunctive order in the form of a writ of
Ipandamus" directed to Defendant Brunner. Construing these two pleadings together, this
Magistrate concludes that what Plaintiff seeks, in essence, is relief in mandamus.
This action concerns the presidential election to be held November 4, 2008, and
whether the nominee of the Democratic Party, Senator Barack Obama, is constitutionally
qualified to hold the office of President of the United States. Article II, Section 1 of the United
States Constitution states "No person except a naturalbom 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. .. "
Plaintiff contends as follows:
IIIII
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Inn ) lOR .. r..'Lt\GISTRATE'S DECISIONI.REOIJEST (COPY

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turned eighteen (18) yem-s of age. There are questions and
research supporting the notion that Bm-ack Hussein Obama is not
his legal American name. Therefore making the name on the
ballot illegal. There are additional questions regarding Obama's
multi-citizenships with foreign countries, which he may still
maintain. To date, Obama has refused to prove he is qualified
under the U.S. Constitution and his eligibility to run as President
of the United States despite requests and recent opportunities to
do so in Federal Court.
(Complaint at pm-. 5.3).
What follows are some nineteen pm-agraphs detailing the "findings" of unnamed
"researchers" "forensic document experts" and a "research team" which Plaintiff contends
demonstrate that no objective proof can be found that Senator Obama is a "natural born citizen"
of the United States. It appem-s that this all amounts to information Plaintiff gleaned from the
Internet and is not within the scope of his personal knowledge.1Plaintiffs complaint candidly
admits "[t]hese allegations and statements m-e not iniended to be proof of the status of Mr.
bbama's citizenship or lack thereof. That will be determined in the venue of the U.S. District
court. The listing of the allegations detailed below are included to demonstrate the reasonable
assertion of the need for the Ohio State [sic] Secretary of State to re-establish public confidence
in the veracity and integrity of the electoral process and the obvious need for pre-certification
to a candidate's meeting the minimum constitutional requirements." (Complaint at pm-. 5.1).
The gist of Plaintiffs complaint is that within R.C. Chapter 3501 there appears no
express procedure by which the Secretary of State can verify that a candidate for President of
ihe United States is, in fact, a "natural born ,citizen." Nevertheless, Plaintiff contends that the
of State has the intrinsic authority to set those reasonable standards that would
establish certain confidence in the people in the electoral process." (Complaint at par. 1.5).
, Although Plaintiff s . complaint seeks a myriad of orders directed to all the named
pefendants, as well as the Federal Elections Commission, which is not even named as a party
herein, Plaintiffs motion for "temporary'injunctive order in the form of a writ of mandamus"
seeks orders directed to Defendant Brunneronly, to wit:
'. Both Plaintiff's. complaint and motion for "temporary injunctive order in the form of a writ of mandamus"
purport to be verified, but in fact, are not notarized and thus cannot be deemed affidavits. See Tokles & Son, Inc. v.
Midwestern Indem. Co. (1992),65 Ohio St.3d 621, 630, fu.3.
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Grant injunctive relief in the form of writ of mandamus requiring
that Ohio State, Secretary of State Jennifer Brunner immediately
acquire primary documents or certified copies from primary
sources such as the appropriate Health Department and/or
appropriate hospital records, or verifiable reports regarding same
from the Federal Elections Commission, Democratic National
Party, Ohio Democratic Party and US Senator Diane Feinstein,
Chairperson Rules Committee. If such reasonable documents as
would establish place and date of birth are not made available to
the Secretary of State prior to the election or at least by the time
expected for certification of the election, then the Secretary of
State is ordered to deClare that candidate as 'not certified' as a
valid candidate for the office of President of the United States
Office of the President under the United States Constitution,
Article II, Section I;
Direct Ohio State, Secretary of State Jennifer Brunner to certify
or decertify the challenged candidates preferably prior to the
election based on the availability of clear documentation so as to
prevent the damages described herein.
I Specifically Plaintiff requests the' Ohio State, Secretary of State
to immediately demand a certified copy of Obama's Oath of
Allegiance proving he regained his United States Citizenship. If
Secretary Jennifer Brunner is unable to document a certified
record of Obama'soath of allegiance, Secretary of State Jennifer
Brunner must decertify that Mr. Obama as a valid candidate on
the Washington [sic] State Ballot for the Office of the President
under the United States.
Plaintiff request that the Secretary of State augment procedures
as part of the application' process to demand proactively such
rudimentary documentatio!" of candidates as would establish
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minimal qualification as demanded by the constitution for that
office.
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Counsel for Defendant Brunner question whether Plaintiff has standing io bring this
action. In actions of a similar nature, recently brought in federal courts, it has been held that a
taxpaying, voting citizen, does not, by virtue of that status, possess the requisite standing to
thallenge whether a candidate for President of the United States is a "natural born citizen." See
Robinson v. Bowen. (N.D. Cal. Sept. 16, 2008), 2008 u.s. Dist. LEXIS 82306; Hollander v.
McCain (D.N.H. 2(08), 566 F.Supp.2d 63, 67-71. However, the Supreme, Court of Ohio has
that "where the question is one of public right and the object of the mandamus is to
procure the enfor,cement of a public duty, the people are regarded as the real party, and the
relator need not show that he has any legal or special interest in the result, it being sufficient to
show that he is a citizen and, as such, interested in the execution of the lawsi' State ex rei. Ohio
Academy of Trial Lawyers y, Sheward (1999),86 Ohio St.3d 451, 472. This Magistrate will
assume, arguendo, that Plaintiff possesses the requisite standing.
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, R.C. 2731.01 defines mandamus as a writ, issued in the name of the state to an inferior
tribunal, a corporation, board, or person, commanding the performance of an act which the law
specially enjoins as a duty resulting froni an office, trust, or station. It is said to be an extra-
ordinary remedy, State ex reI. Parker v, Lucas County Dep't. of Jobs & Family Servo (2008),
176 Ohio App.3d 715, 719, highly prerogative, and its issuance rests in the sound discretion of
the court. State ex reI. Hrelec V. City of Campbell (2001), 146 Ohio App.3d 112, 118.
Mandamus issue when the matter is doubtful. State ex rei. Strothers V. Murphy
(1999), 132 Ohio App.3d 645, 650.
To be entitled to a writ of mandamus, the applicant must establish a clear legal right to .
the requested relief, a corresponding clear legal duty on the part of the Secretary of State to
provide it, and the lack of an adequate remedy in the ordinary course of law. State ex rei.
Colvin v, Brunner (Sept. 29, 2008), 2008 Ohio 5041, 2008 Ohio LEXIS 2588. In mandamus
proceedings, the creation of the 'Iegal duty that a relator seeks to enforce is the distinct function
Of the legislative branch of government and courts are not authorized to create the legal duty
enforceable in mandamus. State ex rei. Boccuzzi V. Cuyahoga County Bd. of Comm 'rs (2007),
i 12 Ohio St.3d 438, 441; State ex rel.Citizens for 'open, Responsible & Accountable
Government V. Register (2007), 116 Ohio St.3d 88, 95; State ex rei. Willke v, Taft (2005), 107'
Ohio St.3d 1,4; State ex reI. Blandin v, Beck (2007), 114 Ohio St.3d 455, 457; State ex reI.
I,
i Counsel for Defendant Brunner have raised several other defenses and objections to the pending motion which
this Magistrate declines to address, give the disposition which follows infra,
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Union County Veterans v. Parroll (2006), 108 Ohio St.3d 302, 303; State ex rei. Woods v. Oak
Hill Community Medical Center, Inc. (2001),91 Ohio St.3d 459, 461. Mandamus will issue.
neither to compel duties that a defendant is not specifically enjoined to perform, nor to require
the performance of a permissive act. Id. at 462.
As Plaintiff concedes, nothing in R.c. Chaper 3501 enjoins the Secretary of State to"
take affirmative measures to verify that a candidate for President of the United S'tates is a
"natural born citizen." R.C.3501.05 does command theSecretary of State, inter alia, "(C) to
prepare rules and instructions for the conduct of elections," and "(N)(1) ... investigate the
administration of election laws, frauds; and irregularities in elections in any county, and report
violations of election laws to the attorney general or prosecuting attorney, or both, for
prosecution." The Secretary of State's duty to may be subject to mandamus, if there
i.s an abuse of discretion. State ex reI. Squire v. Taft (1994), 69 Ohio St.3d 365, 368. An "abuse
of discretion" exists for purposes of mandamus, where the decision not to investigate is
unreasonable, arbitrary, 0;' unconscionable. State ex reI. Grein v. Ohio State Highway Patrol
Retirement System (2007), 116 Ohio St.3d 344, 346.
, The rule is generally accepted that, in the absence of evidence to the contrary, public
officers, administrative officers and public boards, within the limits of the jurisdiction
by law, will be presumed to have properly performed their duties and not to have
acted illegally (or to have abused their discretion), but regularly and in a lawful manner.
Boccuzzi, supra at 441. The onus is upon one who challenges such public officer to
demonstrate an abuse of discretion by admissible evidence--not hearsay, conclusory
allegations, or pure speculation.
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, At the hearing on the pending motion, Plaintiff presented no witnesses but himself.
From that testimony, it is abundantly clear that the allegations in Plaintiffs complaint
concerning "qucstions" about Scnator Obama's status as a "natural born citizen" are derived
from Internet sources, the accuracy of which has not been demonstrated to either Defendant
Brunner or this Magistrate. As' stated recently by the Supreme Court of the United States,
';Supposition based on extensive Internet research is not an adequate substitute for admissible
evidence subject to cross-examination .... " Crawford v. Marion County Election Bd. (2008),
i28 S. Ct. 1610, 1623, fn. 20. Given the paucity of evidence supporting Plaintiffs allegations,
this Magistrate cannot conclude that Defendant Brunner has abused her discretion in failing to
launch an investigation into Senator Obama's qualifications to hold the office of President of
the United States.
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Writ denied.
NOTICE TO PARTIES
The parties shall take notice that this decision may be adopted by the Court unless
objections are filed within fourteen (14) days of the filing hereof in accordance with Civil Rule
53 (D)(3)(b).
(
A party shail not assign as error on appeal the 20urt's adoption of any factual findings
6r legal conclusions, whether or not specifically designated as a finding of fact or conclusion
Of law under Civ.R.53 (D)(3)(a)(ii), unless the party timely and specifically objects to that
factual finding or legal conclusion as required by Civ.R.53 (D)(3)(b). .
C: David M. Neal, pro se
Jennifer Brunner .
Howard Dean
Chris Redfern
. Diane Feinstein

. MAGISTRATE ANDREW HASSELBACH
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WARREN COUNTY, OHIO
COURT OF COMMON PLEAS
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PlaintifflPetitioner .
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DefendantlRespondent.

INSTRUCTIONS TO THE CLERK FOR SERVICE OF MAGISTRATE'S DECISION
PURSUANT TO CIVIL RULE 5
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at the above address shown on the caption.
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DAVID M. NEAL,
Plaintiff,
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FILED"
. 08 NOV i., PM\'; 50"
Jil.f1lS L. SPAOH
CLERK OF COUiHS
IN THE COURT OF COMMON PLEAS
COUNTY OF WARREN, STATE OF OHIO
CASE NO. 08CV72726
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585 185
JENNIFER BRUNNER, ct al.,
Defendants. ENTRY GRANTING
PERMANENT JUDGMENT ,
ON MAGISTRATE'S DECISION
A Magistrate's Decision having been filed herein on OCTOBER 31, 2008 and no
objections to the Decision having been filed within fourteen (14) days from that date, the Court
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ORDERS tile Decision adopted as a permanent judgment of this Court.
Cc: Daviq M, Neal, pro se
Attorney Michael J, Schuler
Howard Dean
Chris Redfern
o/a/'Je re/n5re,J-z
JUDGE NEAL B. BRONSON
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