IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA KEVIN RICHARD POWELL, Petitioner, vs.

BARACK OBAMA Respondent ___________________________________ REPLY BRIEF TO PETITIONER’S MOTION FOR AN EMERGENCY HEARING Petitioner’s motion should be denied for four reasons. First, if petitioner believes that the matters he raises will be moot upon commencement of the election then it is already moot as voting has started. Second, petitioner is not entitled to a hearing as the statute relied upon as justification for the appeal does not mandate a hearing; the only requirement is that the Court review the record filed by the Secretary of State. Third, petitioner filed this action against the wrong defendant. The challenge to a decision of the Secretary of State should be filed against the Secretary of State. Fourth, the Presidential Preference Primary is not an election, as no one is elected to anything, but, in the words of the statute, is simply an opportunity for Democrats “to express their preference for one person to be a candidate for nomination.” O.C.G.A. § 21-2-191. No one is elected, or even nominated, in the preference balloting. Fifth, neither this Court nor the Secretary of State can interfere with internal processes of a political party leading to the naming of individuals to appear on the ballot. Thus, this court lacks subject matter jurisdiction to grant the relief sought. Civil Action File Number 2012 CV 211528

I. NO EMERGENCY EXISTS AS THE ELECTION IS ALREADY UNDERWAY. Petitioner fears that the Court will decline to rule on its petition once the election starts on the grounds that the action is moot. The election has already started. In person early voting began on February 13. Ballots have been printed, machines have been programmed, and every county in Georgia has begun the process of recording preferences so that the political parties can apportion delegates to the nominating conventions. Petitioner does not state what, if any, harm could be caused from the balloting. No one is elected or nominated. The purpose of the polling is to allow political parties to determine how the Georgia delegation to the nominating convention apportions pledged delegates. Petitioners request to delay balloting would force the Secretary of State to undertake enormous additional costs of running a second election at a later date – all for no reason. II. O.C.G.A. § 21-2-5(e) DOES NOT REQUIRE ANY HEARING Assuming that the qualification review statute applies1, nothing in O.C.G.A. § 212-5(e) requires the Court to hold any hearing.2 The statute simply says: The review shall be conducted by the court without a jury and shall be confined to the record. The court shall not substitute its judgment for that of the Secretary of State as to the weight of the evidence on questions of fact.
President Obama maintains that O.C.G.A. § 21-2-5 does not apply to Presidential Preference Primaries because the PPP is not an election – no one is nominated, elected, selected, authorized to take office, qualified, nor is a fee charged as in an election. Under the United States Constitution and the laws of Georgia voters select presidential electors who then select a president. No presidential candidate ever is presented for election by ordinary voters. 2 The Georgia Attorney General has taken the position in numerous qualification review proceedings that no hearing is required by the terms of the statute. Judicial economy suggests that the Court review the record on its own to determine whether appropriate standards were met.
1

Nothing in the statute requires a hearing. The procedure established by the legislature differs in this regard from the ordi9nary procedure established for Superior Court review of an agency decision, which specifically requires a hearing. See, O.C.G.A. § Section 50-13-19. The Court may act on its own based upon the record before it. III. PETITIONER FILED AGAINST THE WRONG PARTY The request for review pending before this Court names President Obama as the respondent. The relief sought, however, is not relief that the respondent can effect if the appeal is sustained by the Court. The proper party respondent when challenging a qualification decision made by the Secretary of State is the Secretary of State. The absence of the Secretary of State from this proceeding is fatal. Petitioner requests relief only against the Secretary of State, not against President Obama, when he demands a “stay of the Final Decision of the Secretary of State.” (Petition, p. 8). In order to grant the relief sought by the petitioner the Secretary of State needs to be before the court. He is not. The Civil Practice Act requires the issuance of a summons signed by the clerk of court in order for the court to exercise power.. The issuance of summons of process signed by the clerk is a necessary part of acquisition of jurisdiction. Schafer v. Wachovia Bank of Georgia, 248 Ga.App. 466, 546 S.E.2d 846 (2001). No summons was issued commanding the appearance of the Secretary of State in this matter. The failure to serve summons deprive the court of personal jurisdiction over the Secretary of State, and necessarily deprives this Court of jurisdiction to grant the relief sought in the petition. Bonner v. Bonner, 272 Ga.App. 545, 533 S.E.2d 72 (2000);

Wilkinson v. Udinsky, 242 Ga.App. 464, 530 S.E.2d 215 (2000); Guerrero v. Tellez, 242 Ga.App. 354, 529 S.E.2d 639 (2000). "In the absence of such legal service or a waiver thereof, ‘the court has no jurisdiction to enter any judgment in the case unless it be one dismissing the case for lack of jurisdiction.’ [DeJarnette Supply Co. v. F.P. Plaza, Inc., 229 Ga. 625, 193 S.E.2d 852 (1972)].” Stamps v. Bank South, N.A., 221 Ga.App. 406, 407-8, 471 S.E.2d 323 (Ga.App. 1996). Jurisdiction over a party must be established before the court can enter any ruling binding a party such as the Secretary of State or the ruling is declared null and void. See Estate of Marjorie C. Thurman v. Dodaro, 169 Ga.App. 531, 532(1), 313 S.E.2d 722 (1984). See also, Lee v. G.A.C. Finance Corp., 130 Ga. App. 44, 45 (4) (202 SE2d 221) (1973). Defendant’s knowledge that the suit exists does not substitute for compliance with service of process statute. Williamson v. Basenback, 298 Ga.App. 567, 680 S.E.2d 577 (2009). See also, Duffy v. Lyles, 281 Ga.App. 377, 636 S.E.2d 91 (2006); Campbell v. Coats, 254 Ga.App. 693, 561 S.E.2d 293 (2002); Finlon v. W&J Factors, Inc., 253 Ga.App. 754, 560 S.E.2d 273 (2002); Cherokee Warehouses, Inc. v. Babb LumberCo., 244 Ga.App. 197, 535 S.E.2d 254 (2000); Walker v. Bord, 225 Ga.App. 242, 483 S.E.2d 675 (1997); In the Interest of D.R.W., 229 Ga.App. 571, 574(1), 494 S.E.2d 379 (1997), Stamps v. Bank South, N.A., 221 Ga. App. 406, 409, 471 SE2d 323 (1996); Rose v. Ryan, 209 Ga.App. 160, 433 S.E.2d 291 (1993); Fisher v. Muzik, 201 Ga.App. 861, 412 S.E.2d 548 (1991). For example, in the latest qualification challenge to go before the Georgia Supreme Court, the parties were the Secretary of State and the party losing in front of the agency. The succeSince the Court is without jurisdiction over the Secretary of State,

the Court cannot issue the relief sought in either the petition or this “emergency request.” IV. NEITHER THIS COURT NOR THE SECRETARY OF STATE MAY INTEREFERE WITH THE CHOICE OF A POLITICAL PARTY AS TO NAMES PLACED ON A PRESIDENTIAL PREFERENCE PRIMARY BALLOT. The Democratic Party of Georgia determines names to include on its Presidential Preference Primary ballot at its sole discretion. O.C.G.A. § 21-2-193. A state political party “enjoys a constitutionally protected freedom which includes the right to identify the people who constitute this association that was formed for the purpose of advancing shared beliefs and to limit the association to those people only.” See Democratic Party of U.S. v. Wisconsin, 50 U.S. 107, 101 S.Ct. 1010, 1019, 67 L.Ed.2d 82 (1981). Duke v. Cleland, 954 F.2d 1526, 1530-1 (11th Cir. 1992). First amendment associational rights of a political party are most often litigated in the context of a party refusing to allow a name to appear on a primary ballot (such as in Democratic Party of U.S. v. Wisconsin or Duke v. Cleland) but the reverse is also true: a political party enjoys the exclusive right to dictate names on its primary ballot. The right to associate not only contemplates the ability to exclude but, necessarily, who to include. The Fourteenth Amendment prohibits the Secretary of State from infringing on associational rights of the Democratic Party of Georgia and its members. Kusper v. Pontikes, 414 U.S. 51, 57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260; Williams v. Rhodes, 393 U.S. 23, 30-31, 21 L.Ed.2d 24. See also, NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488; Ferency v. Austin, 666 F.2d 1023, 1027 (6th Cir., 1981). Apportionment of delegates as a result of preference primary results constitutes an internal party matter. The Secretary of State, even if believing that the challenger’s

claims represent a legitimate position, may not interfere with “the traditionally recognized autonomy of the political party's internal decisionmaking.” Belluso v. Poythress, 485 F.Supp. 904, 912 (N.D. Ga., 1980); See, Ripon Society v. National Republican Party, 173 U.S.App. D.C. 350, 525 F.2d 567, 584-86 (D.C.Cir. 1975) (en banc), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976). The citizenship issue sought to be litigated by the plaintiff cannot be raised in the context of a party preference primary that exists solely to apportion delegates but neither elects nor nominates. Only the Democratic Party of Georgia can determine qualifications of candidates named on the Presidential Preference Primary ballot. See, Duke v. Cleland, 954 F.2d 1526 (11th Cir., 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D. Ga., 1980). Every Georgia case considering the issue ruled against the plaintiff. Rhodes v. MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), aff’d, 2010 WL 892848 (11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009); Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373; Cook v. Good et al, 4:2009cv00082, 2009 WL 2163535 (M.D.Ga. July 16, 2008). Since the state is prohibited from interfering with the choice made by the Democratic Party of Georgia, the Secretary of State lacked jurisdiction to consider the qualification challenge and this Court may not review the decision. Respectfully submitted, This 27th day of February, 2012.

_________________________________ MICHAEL JABLONSKI Georgia State Bar Number 385850 2221-D Peachtree Road NE Atlanta, Georgia 30309 404-290-2977 michael.jablonski@comcast.net

CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing pleading upon Mr, Mark Hatfield Attorney at Law 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 by statutory electronic service pursuant to O.C.G.A. § 9-11-5(e) using the email address mhatfield@wayxcable.com. This 27th day of February, 2012.

_________________________________ MICHAEL JABLONSKI Georgia State Bar Number 385850 2221-D Peachtree Road NE Atlanta, Georgia 30309 404-290-2977 michael.jablonski@comcast.net