IN THE SUPERIOR

COURT OF FULTON COUNTY

STATE OF GEORGI.A CARL SWENSSON, Petitioner

* *
CIVIL ACTION FILE NO. 2012CV211527

v.
BARACK OBAMA,

*
* *
Respondent

PETITIONER'S RESPONSE TO RESPONDENT'S MOTION TO DISMISS Now comes Petitioner undersigned Motion counsel, Carl Swensson, by and through Barack Obama's

and responds

to Respondent

to Dismiss herein as follows: PRELIMINARY STATEMENT claims that

Respondent the instant country

Obama's

Motion

to Dismiss initially

case is one in a series of cases filed across the Respondent. presumably to Respondent's

since 2008 in "[a]n effort to harass"

Respondent including

further claims that those individuals, Petitioner herein, bringing challenges

qualifications requirements fantasy,

for office because

"ignore procedural

and evidentiary based on Finally, from the

their claims are without merit, in pursuit of a political

and offered

agenda."

Respondent moment

claims that he "was a United States citizen and that therefore, have been met." "all

of his birth in Hawaii"

Constitutional

(sic) qualificatio0s

A review of

Page -1-

the record in this action, assertions are completely

however, misguided.

reveals that Respondent's

Petitioner Respondent United

first notes that no individual,

including of the

Obama, has a vested right to be the President An individual

States.

seeking to hold the Office of the to comply with the provi9ions requirements for

Presidency

is expected

and required

of the Constitution, the presidency, States thereof.

including

the eligibility

and the laws of the United

States and the Several

With the foregoing it was Respondent Obama,

in mind,

Petitioner

would point out that the submission Democratic of

in fact, who initiated

his name as a candidate Presidential under Georgia Ballot.

to be listed on the Georgia in accordance

Likewise,

with his rights challenge

law, Petitioner

raised an administrative

to the Respondent's pursuant to Article

qualifications

as a "natural born Citizen"

II of the United States Constitution. to have

Respondent

and his lawyer tried, unsuccessfully, challenge dismissed. Respondent requiring

Petitioner's

was then legally

served with a Notice

to Produce,

him to appear at trial with him.

and to bring certain documents The Respondent did not object.

and items of evidence

When the time for trial was imminent, lawyer wrote a lett~r to the Georgia he boldly criticized and attacked

the Respondent's of State in which law judge

Secretary

the administrative

Page -2-

and in which he stated that he and his client were refusing come to court. or duties Secretary The day of trial, when Respondent public schedule,

to

had no events

on his official

and after the

of State had warned him that his failure to appear the Respondent and his lawyer

would be at his own peril, nevertheless Petitioner's

failed to appear valid Notice no evidence

for court and failed to comply with The Respondent thus not for

to Produce.

only presented

of his own as to his eligibility significant

office, but he failed to produce to which Petitioner

pieces of evidence

was legally entitled. misconduct and failings of total it

In view of the foregoing Respondent disregard appears

and his lawyer, and considering

Respondent's

of the laws of this State and the judiciary and not Petitioner,

thereof,

that it is Respondent, and evidentiary agenda,"

who "ignore[s] of a

procedural political

requirements,"

who is "in pursuit

and whose factual assertions

- which he fails

to support with any evidence Petitioner, availing himself

- ar~ "based on fantasy." anyone, is simply

far from seeking to "harass" of lawful procedures

under Georgia

law in order

to properly wheth~r

raise and have finally determined

the issue of and never

Respondent,

whose father was a foreign national is a "natural born Citizen"

a United States citizen, under Article United States.

eligible of the

II of the Constitution

for the Presidency contends

In that regard, Petitioner

that the

Page -3-

"natural prevent national command

born Citizen"

requirement

of Article

II was intended and dual

to

anyone born with dual national allegiances

citizenship

from holding the presidency military forces.

and the ultimate

of this nation's

It is thus nothing

less than a matter and construction

of national

security

that the proper meaDlDg requirement, as

of the "natural

born Citizen"

set forth in Minor v. Happersett, 627, 21 Wall. Judiciary. I.

88 U.S. 162, 167, 22 L. Ed. confirmed by the

162 (1875), be conclusively

SUBJECT-MATTER JURISDICTION on the basis of a lack of subject-matter first argues that First party give the

Seeking dismissal jurisdiction Amendment

in this Court, Respondent

associational

rights of a political

party the exclusive Presidential contends

right to determine Primary ballot.

whom to include aD its While Respondent rights of a party are

Preference

that First Amendment

associational

"most often litigated" to permit

in the situation

in which a party refuses Party of

a name on a primary ballot

(citing Democratic

U.S. v. Wisconsin,

50 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82 954 F. 2d 1526 (11th Cir. 1992)), he

(1981); Duke v. Cleland, also claims

that "the reverse is also true" in that the party has right to require certain names on its primary however, cites no authority for the latter are

the unchecked ballot.

Respondent,

proposition.

Moreover,

none of the cases cited by Respondent

Page-4-

authority

for the conclusion associational

that a political rights deprive

party's of

constitutional

a state government or

its ability to require statutory eligibility

that candidates requirements

meet constitutional

for office

in order to be

placed on the state ballot .. G.C.G.A. Secretary §§ 21-2-5(b) and (c) authorize Georgia the Georgia to challenge

of State, or an eligible qualifications,

elector,

a candidate's thereafter qualified

and the Secretary whether

of State is is gives an

empowered

to determine

the candidate § 21-2-5(e)

to seek and hold office. challenging

G.C.G.A.

elector unsuccessfully

a candidate's

qualifications by filing a

the right to appeal the Secretary petition state's in the Superior

of State's decision

Court of Fulton County. nothing

Given the pertaining to the

right to run its own elections,

associational

rights of the Respondent's.political jurisdiction however,

party deprives

this Court of subject-matter Respondent the Georgia

in this matter.
§

also contends,

that G.C.G.A.

21-2-5,

qualifications· challenge Preference

statute,

does not apply to

the Presidential

Primary and that this Court therefore jurisdiction. In this connection, of "election" found in but

does not have subject-matter Respondent G.C.G.A.
§

points

out that the definition includes

21-2-2(5)

general or special elections, unless the context in which

not a primary

or special primary

Page-5-

"election"

is used "clearly

requires"

the inclusion

of a primary

or special primary. Respondent 21-2-15 inasmuch overlooks, as however, the provisions of O.C.G.A.
§

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. Respondent challenge further fails to realize that the qualifications
§

statute,

O.C.G.A.

21-2-5, grants a right to challenge regardless of the specific Preference
§

the qualifications type of election.

of "any candidate," Contestants

in a Presidential O.C.G.A.

Primary are designated Respondent "certified

as "candidates."

21-2-193. must be party"

nevertheless

argues that a "candidate" committee

by the state executive

of a political
§

or must submit "a notice of candidacy," and that neither Respondent. challenge of such conditions
§

see O.C.G.A.

21-2-5{a),

have taken place as to however, that a

O.C.G.A.

21-2-5{b)

provides,

of the qualifications

of any candidate

may be made "at and

any time prior to the election Respondent's certification Petitioner candidacy" political

of such candidate,"

party would presumably

be filing a election.

of his nomination

prior to the general

additionally

submits that "certified" defined

and "notice of

are not specifically

terms in the Georgia

Page -6-

Election

Code, and one could argue that the list of Presidential Primary candidates
§

Preference

submitted 21-2-193

by Respondent's a

political

party pursuant "certification"

to D.C.G.A.

constituted

or a "notice of candidacy." it is apparent that the Georgia qualifications

Accordingly, challenge Preference jurisdiction II.

statute does, in fact, apply to the Presidential Primary and that this Court does have subject-matter herein.

SERVICE OF SUMMONS also seeks dismissal for the reason that "service to

Respondent

of the summons and complaint [RJespondent's 'attorney." service or a waiver

was made by mailing

Respondent

claims that personal for a viable suit.

thereof was required

The case of Douglas Asphalt Commission, controlling.

Co. v. Georgia

Public Service

263 Ga. App. 711, 589 S.E. 2d 292 In Douglas Asphalt,

(2003) is

the Court held that in an of a state agency or other for judicial review

appeal of an administrative tribunal, personal

decision

service of the petition

upon the agency was not required, to preserve specifically decision pertinent the jurisdiction

and service by mail was proper The Court from an agency in

of the court.

noted that service of appeals by O.C.G.A.
§

is governed

5-3-21, which provides

part that "[a] copy of the notice of appeal shall be in the same manner prescribed by Code

served on all parties

Page-7-

Section

5-6-32."

D.C.G.A.

§ 5-6-32(a),

in turn, provides

in

pertinent

part that Whenever under this article service or the giving of any notice is required or permitted to be made upon a party and the party is represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service of all notices and other papers hereunder and service of motions for new trial, motions in arrest, motions for judgment notwithstanding the verdict, and all other similar motions, orders, and proceedings may be made by the attorney or party filing the notice or paper, in person or by mail, and proof thereof shown by 'acknowledgment of the attorney or party served, or by certificate of the attorney, party, or other person perfecting service.

Therefore, Respondent accordance however,

in the instant case, service of the Petition same to his attorney Petitioner was in

upon

Dbama by mailing with Georgia law.

notes in passing,

that even if the service by mail were for any reason not proper, D.C.G.A.
§

considered

5-3-21(b)

states in pertinent

part

that ~[f]ailure dismissal,

to perfect

service on any party shall not work court shall grant continuances and

but the superior

enter such other orders as may be necessary expeditious
III.

to permit a just and

determination

of the appeal."

STATEMENT OF CLAIM AGAINST RESPONDENT

Respondent

finally requests a decision

dismissal

because

~[t]he proper of State

party when challenging is the Secretary

made by the Secretary

of State."

Respondent

states such contention

Page -8-

with no citation Respondent

of authority

whatsoever.

Nevertheless, action does not

goes on to claim that Petitioner's Respondent,

seek any relief against S~cretary of State.

but only against the that there is a of State, as of State in

Respondent

further'contends

lack of personal

jurisdiction

over the Secretary

"[nlo summons commands this matter." Beginning with,the

appearance

by the Secretary

latter issue of "summons," O.C.G.A.
§

Respondent's that

legal ,analysis is flawed. Petitioner's decision action. O.C.G.A. Petition

21-2-5(e)

makes·plain

For Judicial

Review

is an appeal

from the civil

of the Secretary

of State; it is not an original to service of the Petition in

The only reference
§

21-2-5(e)

states that "[als soon as possible the Secretary

after

service of the petition, the original reviewing

of State shall transmit

or a certified Nowhere

copy of the entire record ...to the in this statute is "summons" required

court."

or even mentioned. Likewise, O.C.G.A.
§

5-3-21(b)

provides

in pertinent

part

that "[a] copy of the notice of appeal shall be served on all parties ...." Again, nowhere in the st at.u e is "summons" t required

or even mentioned. Furthermore, in Douglas Asphalt, 263 Ga. App. at 711-712, by mail, with no

the state agency was served with the petition

summons a tall.

The Court affirmed

the judgment

of the superior

Page -9-

court which denied dismiss personal

the agency's

motion

to dismiss.

The motion

to

had been based upon an allegation service. the Secretary

of failure to perfect

As for his role herein,

of State is not a of

proper party to this petition. State is essentially court. The challenge

In this appeal, the Secretary role, akin to a lower was not

in a quasi-judicial to Respondent's

qualifications

brought by the Secretary and Respondent

of State, but by Petitioner.

Petitioner (at of

were the named parties

below, and Respondent the Secretary

least up until trial) defended State did not defend with an interest the Secretary

the challenge;

the challenge

in any manner.

The entity not

at stake in this challenge

was Respondent,

of State. Petitioner's challenge of State was not a (i.e. the and of

Under these circumstances, dispute agency). between Petitioner

and the Secretary

The challenge

was a dispute between adjudicated

Petitioner

Respondent, State.

and same was merely

by the Secretary

The instant

Petition does therefore

state a claim against

Respondent. The items of relief action are a reversal sought by Petitioner in the instant of

of the Final Decision

of the Secretary II

State, a finding that Respondent "natural born Citizen"

does not meet the Article for the presidency,

requirement

a removal

of Respondent's

name from the ballot,

an order adjudging

Page -10-

Respondent

in contempt

of court for his deliberate Notice to Produce

failure to

comply with Petitioner's proceedings; Presidential

in the administrative of the

and conditionally, Preference

a postponement

Primary Election.

Should the requested granted

relief be granted by this Court, such would be primarily in the form of an order reversing Secretary of State with direction the Final Decision to the Secretary

of the

of State as to

the appropriate

remedy to be crafted,

in much the same manner

that the Court of Appeals superior court judgment

or Supreme Court would reverse a The Secretary of State this

with direction.

simply does not need to be a party in order to accomplish Court's granting of the requested relief, and none of the

applicable considered

statutes a party.

require the Secretary

of State to be named or

Petitioner

further notes that Respondent's

citation as the

to

Handel v. Powell, Secretary

284 Ga. 550 (2G08) is misplaced, brought

of State there personally qualifications.

the challenge

to a

candidate's elector,

There was no challenge instant case.

filed by an

as in Petitioner's

Powell, the candidate,

filed the petition Secretary initial

for judicial

review, and Powell and the (2) parties in both the

of State were-the

only two

challenge

and the appeal to superior

court. that even if the

Petitioner Secretary

again notes in passing,

however,

of State were for any reason deemed to be a necessary

Page -11-

party to this appeal who had not been properly 5-3-21(b) states in pertinent

served, O.C.G.A. to perfect

§

part that "[fJailure

service on any party shall not work dismissal,

but the superior

court shall grant continriances and enter such other orders as may be necessary the appeal.
H

to permit

a just and expeditious

determination

of

CONCLUSION For the above and foregoing requests that Respondent's reasons, Petitioner respectfully

Motion to Dismiss be denied. this 2nd day of March, HATFIELD & HATFIELD, 2012. P.C.

Respectfully

submitted,

ney for Pe tioner Georgia Bar No. 337509 201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

31502

Page-12-

CERTIFICATE
I, J. Mark Hatfield,

OF SERVICE for Petitioner, do hereby Petitioner's

Attorney

certify Response

that I have this day served the foregoing to Respondent's Motion to Dismiss upon:

Mr. Michael K. Jablonski Attorney at Law 2221-D Peachtree Road NE Atlanta, Georgia 30309 Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334 by placing addressed a copy of same in the United States Mail in a properly envelope with sufficient delivery, postage ·affixed thereto in

order to insure proper Jablonski

and by emailing

same to Mr. same

at michae~.iab~onski@comcast.net Kemp at vrusso@sos.qa.qov. 2012. HATFIELD

and by emailing

to Secretary

This 2nd day of March,

& HATFIELD,

P.C.

At orney for P Georgia Bar No. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

31502