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ATTORNEYS AT LAW 201 ALBANY AVENUE P.O. BOX 1361 WAYCROSS, GEORGIA 31502 J. MARK HATFIELD THOMAS E. HATFIELD TELEPHONE (912) 283-3820 FACSIMILE (912) 283-3819
February 7, 2012
VIA EMAIL ONLY (to email@example.com .ctov)
Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334 RE: Carl Swensson v. Barack Obama Office of State Administrative Hearings Docket No. OSAH-SECSTATE-CE-1216218-60-MALIHI Kevin Richard Powell v. Barack Obama Office of State Administrative Hearings Docket No. OSAH-SECSTATE-CE-1216823-60-MALIHI Dear Secretary Kemp: As you are aware, Administrative Law Judge Michael Malihi issued a "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 a final determination of Defendant Obama's eligibility to appear on the ballot in Georgia, I am writing to respectfully point out several significant flaws in Judge Malihi's findings and conclusions. Initially, I would note that although Judge Malihi ordered my clients' cases severed, as a unit, from the cases of Plaintiffs Welden; Farrar; Lax; Judy; Malaren; and Roth, and although Judge Malihi conducted a separate hearing as to my clients' cases as requested, he nevertheless erroneously issued a single "Decision" applicable to all of the Plaintiffs' cases, despite the fact that the evidence; testimony; and legal argument advanced by my clients differed from that offered by the other Plaintiffs. The adverse impact upon my clients of Judge Malihi's erroneous issuance of a single "Decision" as to all Plaintiffs is
Honorable Brian P. Kemp February 7, 2012 Page 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 Defendant Obama was born in the United States; and 2) that Defendant Obama's mother was a citizen of the United States at the time of Defendant's birth. Both of these "facts" found by Judge Malihi constitute a second significant flaw in the judge's ruling and serve as the stated factual basis for his erroneous conclusion that Defendant Obama is eligible for the presidency. Simply put, a review of the record in my clients' above - captioned cases 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 any copy 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 while these divorce records did establish the identities of Defendant's parents and the date of Defendant's birth, the divorce records did 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 served defense counsel with a Notice to Produce, directing his client to appear 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 of Defendant Obama's purported "long form" and "short form" birth certificates by attaching same to a letter addressed and emailed to you on January 25, 2012, the day before the trial, essentially informing 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 as applied in the trial of civil nonjury cases in the superior courts 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. Kemp February 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 documentary evidence according to the rules of evidence applicable to the superior courts of this state" (emphasis supplied). In the instant cases, Plaintiffs' Notice to Produce, served on January 19, 2012, had already requested Defendant Obama to produce one (1) of the two (2) original certified copies of Defendant's "long form" birth certificate in his possession, as well as all medical; religious; administrative; or other records of or relating to Defendant's birth. Of course, Defendant Obama and his lawyer deliberately ignored Plaintiffs' valid requests, and Mr. Jablonski's misguided attempt to inappropriately place documents into the record through the "back door" should likewise be ignored. A third significant flaw in Judge Malihi's "Decision" is that he completely failed to make a determination as to the proper placement 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 For Determination of Placement of Burden of Proof" in which Plaintiffs 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 by Plaintiffs, 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 the attorneys for the various Plaintiffs, that Defendant Obama probably 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 such failures 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 Defendant can in no way be said to have satisfied his burden, and Plaintiffs are entitled to judgment. Along similar lines, the Defendant's deliberate failure to appear also constituted an event of default, and Plaintiffs' challenges to Defendant's qualifications should have been sustained on that
Honorable Brian P. Kemp February 7, 2012 Page Four separate and independent basis. OSAH Rule 616-1-2-.30. However, the Court, in a fourth significant flaw in its ruling, erroneously failed to so find. The fifth, and perhaps most glaring, flaw in Judge Malihi's "Decision" is his adoption of the non-binding reasoning of the Indiana Court of Appeals in Ankeny v. Governor of Indiana, 916 N.E. 2d 678 (2009), in finding that "a person qualifies as a natural born citizen if he was born in the United States because he became a United States citizen at birth" ("Decision," p. 10). Although, as pointed out hereinabove, there was absolutely no evidence whatsoever submitted in the above-captioned cases to establish Defendant Obama's place of birth, Judge Malihi's ruling that a person's birth in the United States automatically confers the status of "natural born Citizen" pursuant to Article II of the United States Constitution is unfounded; is an incorrect statement of the applicable law; and is contrary to the ruling of the United States Supreme Court in Minor v. Happersett, 88 U.S. 162, 167, 22 L. Ed. 627, 21 Wall. 162 (1875). Minor is binding authority for the proposition that the Article II phrase "natural born Citizen" refers to a person born in the United States to two (2) parents who were then (at the time of the child's birth) themselves United States citizens. Because Defendant Obama's father was not a United States citizen at the time of Defendant's birth, Defendant does not meet the Article II "natural born Citizen" requirement for the presidency, and Judge Malihi committed fundamental error in finding otherwise. A sixth significant flaw in Judge Malihi's "Decision" is his failure to rule on Plaintiffs' Citation For Contempt filed against Defendant in these cases. Citing Defendant's (and defense counsel's) knowing, intentional, and deliberate failure to comply with Plaintiffs' Notice to Produce, Plaintiffs' Citation sought from Judge Malihi a certification to the Superior Court of Fulton County of the facts of the Defendant's contemptuous behavior for a determination by the superior court of appropriate action, including a finding of contempt. OSAH Rule 616-1-2-.22 (5) makes such a certification to the superior court mandatory, upon application of a party, when another party disobeys or resists any lawful order or process; neglects to produce, after having been ordered to do so, any pertinent book, paper, or document; or refuses to appear after having been subpoenaed. Incredibly, Judge Malihi did not even acknowledge the existence of the Plaintiffs' Citation For Contempt in his final ruling.
Honorable Brian P. Kemp February 7, 2012 Page Five Please note that the foregoing cited errors, omissions, and flaws in Judge Malihi's "Decision" are not intended to be exhaustive, and Plaintiffs specifically reserve the right to raise other claims of error hereafter. Mr. Secretary, as you deliberate on your final determination of Defendant Obama's qualifications to seek and hold office, I am requesting, on behalf of my clients, that you consider the posture of these matters. Defendant Obama has initiated the submission of his name as a candidate to be listed on the Georgia Democratic Presidential Ballot. Likewise, in accordance with their rights under Georgia law, my clients have raised a challenge to the Defendant's qualifications as a "natural born Citizen" pursuant to Article II of the United States Constitution. The Defendant and his lawyer tried, unsuccessfully, to have my clients' challenges dismissed. The Defendant was then legally served with a Notice to Produce, requiring him to appear at trial and to bring certain documents and items of evidence with him. The Defendant did not object. When the time for trial was imminent, the Defendant's lawyer wrote a letter to you in which he boldly criticized and attacked the judge and in which he stated that he and his client were refusing to come to court. The day of trial, after you warned him that his failure to appear would be at his own peril, the Defendant and his lawyer nevertheless failed to appear for court and failed to comply with the Plaintiffs' valid Notice to Produce. The Defendant thus not only presented no evidence of his own, but he failed to produce significant pieces of evidence to which Plaintiffs were legally entitled. Inexplicably, Judge Malihi, after verbally acknowledging Plaintiffs' entitlement to a "default judgment," then entered an order fully favorable to the recalcitrant Defendant, and to top it off, the judge refused to even acknowledge Plaintiffs' attempts to have Defendant held accountable for his purposefully contemptuous behavior in ignoring Plaintiffs' Notice to Produce. Doesn't this result sound unreasonable? Doesn't this result appear on its face unfair? Doesn't this result in fact suggest that the Defendant is above the law? Mr. Secretary, I am respectfully requesting on behalf of my clients that you render a decision in this matter that treats Defendant Obama no different than any other candidate seeking access to the Georgia ballot who fails and refuses to present evidence of his or her qualifications for holding office and who
Honorable Brian P. Kemp February 7, 2012 Page Six disregards the authority of our judiciary. I request that my clients' challenges to Defendant Obama's qualifications be sustained and upheld. Finally, in view of the rapidly approaching Presidential Preference Primary in Georgia on March 6, 2012, I respectfully request that you enter a decision in these matters on an expedited basis. Respectfully submitted,
JMH:jmh cc: Honorable Michael M. Malihi (via email to firstname.lastname@example.org .crov) Mr. Michael Jablonski (via email to email@example.com )
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