IN THE SUPREME COURT STATE OF GEORGIA CARL SWENSSON, Applicant

* * *
*
CASE NO.

v.
BARACK OBAMA, Respondent

*

APPLICATION

FOR DISCRETIONARY

APPEAL

MARK HATFIELD HATFIELD & HATFIELD, P.C. Attorney for Applicant 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820 Georgia Bar No. 337509 mhatfield@wayxcable.com

J.

IN THE SUPREME COURT STATE OF GEORGIA CARL SWENSSON, Applicant V. BARACK OBAMA, Respondent APPLICATION Now comes AppL_cant undersigned pursuant counsel"

*

* * * *
FOR DISCRETIONARY Carl Swensson, APPEAL CASE NO.

by and through to this Court for leave to

and respectfully

applies

to O.C.G.A,

§§

5-6-35(a) (1) and 21-2-5(e) from the Superior

file a discretionar~T appeal County's Dismiss,"

Court of Fulton to

"Order Grarrting Respondent which was entered

Barack Obama's Motion

and filed on March 2, 2012, in a Final

Applicant's Decision

Fulton ~3uperior Court action appealing Secretary of State Brian P.

of Georgia

Kemp denying Barack

Applicant's Obama,

challeneJe to the qualifications

of Respondent

a presidenti2il candidate, of th(~ United

to seek and hold the Office of Obama

the President eligible

States, and finding Respondent primary

as a candidate

for the presidential

election.

Applicant attaching Granting

resp(~ctfully shows to the Court that he is as Exhibit
"A"

hereto:

a copy of the aforesaid Motion to Dismiss"; Review"

"Order

Respondent

BarackObama's

as Exhibit

"B" a copy of the "Petition

For Judicial

filed by Page -1-

Applicant

in the Superior

Court of Fulton County on February "Motion

15,

2012; as Exhibit

"c"

a copy of Applicant's

For Expedited of

Review or, Alternatjvely, State and For Postponement Election" Respondent

For Stay of Decision of Presidential

of Secretary

Preference

Primary

filed on I'ebruary 22, 2012; as Exhibit Barack Obama's "Motion to Dismiss"

"0" a copy of

and Brief in "E" a

Support thereof

sen,'ed on February "Response

27, 2012; as Exhibit Motion

copy of Applicant's submitted

to Respondent's

to Dismiss"

to and accepted

by the Superior

Court of Fulton County, by email on March

as per the Court's llermission and instructions, 2, 2012 and thereafter Exhibit

stamped as filed on March 5, 2012; and as 25, 2012 from

"F" a copy of a letter dated January attorney to Secretary

Respondent's

of State Brian P. Kemp.

PART ONE

STATEMENT 1. TYPE OF CJ~E. Appeal

OF THE CASE For

This case is an Application to O.C.G.A.

Discretionary 2-5(e)

pursuant

§§

5-6-35(a) (1) and 21Court

for leave to appeal

from the Order of the Superior "Petition Secretary

of Fulton County di~,missing Applicant's Review" of a Final Decision of Georgia challenge

For Judicial of State Brian of

P. Kemp denying Applicant's Respondent Obama,

to the qualifications

a presidential

candidate,

to seek and hold the and finding

Office of the President Respondent primary

of the United

States,

Obama eli,gible as a candidate

for the presidential

election. Page -2-

2.

SUPREME

COURT JURISDICTION.

The Supreme Court has pursuant to O.C.G.A. to the 1983

jurisdiction

to entertain

this Application

§§

5-6-35(a) (1) and 21-2-5(e),

as well as pursuant Article

Constitution Paragraph

of the State of Georgia,

VI, Section VI, the to Presidential

II, as this case draws into question o~~ O.C.G.A.

constitutionality Preference

§

21-2-5 as applied

Primarie~;, and as this case involves borrl Citizen" presidential

the construction

of the "natural requirement

eligibility 5 of the United this Court's

of Artic:le II, Section

I, Clause

States Constitution" exclusive 3. appellate

and this case thus falls within jurisdiction.

JUDGMENT l!lPPEALEDAND DATE OF ENTRY. "Order Granting

The Superior Barack

Court of Fulton County's Obama's Motion 2012. 4. Respondent Committee STATEMENT

Respondent

to Dj.smiss" was entered

and filed on March 2,

OF FACTS.

On or before October

31, 2011,

Barack Ollama submitted of the Democratic

a letter to the Executive seeking to be listed Primary Ballot. Party

Party of Georgia

on the Georgia Consequently, Chairman

Democ:ratic Presidential on November

Preference

1, 2011, Georgia pursuant

Democratic

Mike Berlorl submitted,

to O.C.G.A. Secretary

§

21-2-193,

the name of RespondE!nt Obama to the Georgia Office as a candidate

of State's

to be listed on the Georgia Primary Ballot.

Democratic

Presidential

Preference

Page -3-

Thereafter, Swensson,

pu::suant to O.C.G.A.

§

2l-2-5(b), Georgia

Applicant

a resident: of Clayton

County,

and a registered to vote for

voter in the State ()f Georgia candidates for the Presidency

and an elector of the United

eligible States,

timely filed to the

with the Georgia qualifications Presidency Respondent requirement

Se(:retary of State a written

challenge

of RE~spondent to seek and hold the Office of the States. Applicant contended that

of the United

does not meet the "natural born Citizen" of Arti(:le II, Section I, Clause

eligibility

5 of the United

States Constitution" As prescribed Secretary by O.C.G.A.

§

21-2-5(b),

the Office of the to an

of Statel:eferred law judge

Applicant's

challenge

administrative

(hereinafter

"ALJ") of the Office of "OSAH"). Thereafter, a

State Administrativ(~ Hearings pursuant hearing to proper on January

(hereinafter

llotice to all parties, 26, 2012.

the ALJ conducted

Applicant record, through

was present

at trial and submitted and testimony However,

into the to the

cou:lsel, evidence

pertaining

issues raised by hi:3 challenge.

despite being timely counsel requiring

served with a Notici3 to Produce by Applicant's Respondent certain to persollally appear

for trial and to bring with him by Applicant at trial,

documents

for use as evidence

Respondent Likewise,

failed to appear Responden:'s

for trial on January

26, 2012.

attorney

also failed to appear for trial.

Page -4-

No evidence

or test:Lmony whatsoever

was introduced at trial.

into the

record by or on beh~llf of Respondent Respondent and his attorney to appear

The failure of

for trial on January 26, by a January to Georgia

2012 was knowing anci intentional,

as demonstrated attorney

25, 2012 letter wri1:ten by Respondent's Secretary of State Brian P. Kemp

(Exhibit "F"). that Respondent's

Applicant's

ev __ence at trial established d

father, Barack HussE!in Obama, was born in Kenya and was a subject of Great Britain. Respondent's citizen Additionally, Applicant established that

afores~lid father, Barack Hussein

Obama, was not a

of the United

States as of the date of birth of

Respondent

in 1961 or at any other time whatsoever. on February 3, 2012, the ALJ issued an initial as a candidate to O.C.G.A. for the

Nevertheless, Decision

finding Re~3pondent eligible primary election.

presidential the ALJ's

Pursuant

§

21-2-5(b),

Decision

~las reported

to the Secretary

of State.

Subsequently 5(c), Georgia Decision

on Feb::uary 7, 2012, pursuant Secretary of State Brian P. Decision

to O.C.G.A.

§

21-2-

Kemp issued a Final

adopting

the initial

of the ALJ and denying

Applicant's

challenqe.
151

On February Applicant timely

2012, pursuant

to O.C.G.A.

§

21-2-5(e),

fL_ed in the Superior Review"

Court of Fulton County a and seeking judicial (Exhibit "8")

"Peti tion For Judic_al

appealing

review of the Secre+:ary of State's

Final Decision

Page -5-

Applicant's expedited Georgia

Petitioll also requested

that the Court grant an

hearing

alld review of the case due to the fact that the Primary Election was scheduled 6, 2012. to In of

Presidentia:_ Preference

take place less than three a further effort to obtain

(3) weeks later, on March

some action by the Court in advance

the election "Motion Decision

date, J\pplicant then filed, on February

22, 2012, a

For Expedi t(;d Review or, Al ternati vely, For Stay of of Secretary of State and For Postponement Primary Election" of

Presidential

Preference

(Exhibit "C") served a in which over the

On February

27, 2012, counsel

for Respondent

"Motion to Dismiss" Respondent

and Brief in Support thereof

argued ttlat the Court lacked jurisdiction

subject matter;

that: there was a failure of service of process; failed to state a claim upon which

and that Applicant'~3 Petition relief could be granted On March

(Exhibit "0"). counsel for Applicant

1, 20_2, the Court notified

by email that, if AIJplicant wished "Motion to Dismiss," morning, 16-17).

to respond

to Respondent's

counsel would have until the following

March 2, 2()12 at 9:30 a.m., to do so (Exhibit "E," pp. Counsel fOJ~ Applicant thereafter submitted to the Court,

by the aforesaid Motion

de2idline, Applicant's (Exhibit "E," p.

"Response

to Respondent's

to Dismiss"

14), and the Court

acknowledged morning

receip1: of same in an email sent at 8:30 a.m. on the (Exhibit "E," p. 15). Just over two and

of March 2, 2012

Page -6-

one-half

(2~) hours later, the Court emailed its file-stamped
ReSI)Ondent Barack Obama's Motion to Dismiss"

"Order Granting

(Exhibit "A," pp. 1·-2). PART TWO ENUMERATION OF ERRORS 1. The Super_or Court erred in holding that O.C.G.A. to the Preference

§

21-

2-5 does not apply ~_n the context of a challenge qualifications Primary. 2. The Superior Court erred in holding to a challenge of a candidate in the Presidential

O.C.G.A.

§

21-2-5

unconstitutional of a candidate 3.

as applied

to the qualifications Primary. that Applicant action

in the Presidential

Preference

The Superior

Court erred in holding

failed to perfect

sE!rvice and in dismissing of failure to perfect

Applicant's service.

based upon a findinq
4.

The Super~or

Court erred in failing to reverse the of State on the basis of the

Final Decision

of the Secretary

ALJ's and the Secret.ary of State's errors in failing to determine the proper placement of the burden of proof and in failing to challenge.

apply such determinc,tion in ruling upon Applicant's 5. The Superior

Court erred in failing to reverse the of State on the basis of the

Final Decision

of t:he Secretary

ALJ's and the Secret.ary of State's errors in finding as "fact" that Respondent was born in the United States and that

Page -7-

Respondent's

mother

was a citizen

of the United States at the

time of Respondent':3 birth. 6. The Super __ r Court erred in failing to reverse the o of tlle Secretary of State on the basis of the

Final Decision

ALJ's and the Secre1:ary of State's error in finding that Respondent Article qualifie~3 as a "natural born Citizen" pursuant to

II of the Ullited States Constitution, f2ither was not a United

despite

the fact at the

that Respondent's

States citizen

time of Respondent':3 birth. PART THREE AND CITATION OF AUTHORITY

ARGUMENT Applicant 34, concerning provides

would note at the outset that this Court's Rule the :3tandard for granting discretionary appeals,

in pertinent

part that "[a]n application

for leave to 5-6-35 shall be error appears is

appeal a final judgrlent [pursuant to] O.C.G.A. granted," among othE!r instances,

§

when " [r]eversible

to exist" or when" desirable." In the instant

:t]he establishment

of a precedent

case, as set forth hereinbelow,

the Superior

Court, as well as tlle ALJ and the Secretary number of reversiblE! errors. significant Additionally,

of State, made a as this case raises authority and as to

issues J:egarding the State of Georgia's of presidential

screen the qualifications

contenders,

these issues are ceJ:tainly capable of being raised with regard to

Page -8-

future presidential is both necessary

candidacies,

the establishment

of a precedent

and desirable.

1.

The Super::Lor Court erred in holding that o. C.G.A. § 21to the Preference

2-5 does not apply :in the context of a challenge qualifications Primary.
The Superior qualifications Presidential Cc)urt held that O.C.G.A. statute, Primary,

of a candidate in the Presidential

§

21-2-5, the Georgia

chal.enge Preference

does not apply to the as the Presidential Preference

Primary apportions nomination

delegates,

but does not result in the candidate. The Court for the

or elect::.onof a presidential

also found that Respondent Presidential Primary Election

is not yet a "candidate"

Electic)n, and that the Presidential

Preference of the Georgia

is not an "E!lection" within the meaning Code. In this connection, Respondent

contended

before

the Superior O.C.G.A.

Court t:hat the definition includes general

of "election"

found in but

§

21-2-2(5)

or special elections, in which

not a primary "election"

or spE!cial primary

unless the context the inclusion

is used "clearly

requires"

of a primary

or special primary. The Superior provisions Court and Respondent overlooked, as however, the

of O.C.G.A.

§

21-2-15

inasmuch

This ch~pt:er shall apply to any general or special eJ.ection in this state to fill any federal, ~;tate, county, or municipal office,

Page -9-

to any general or special primary to nominate candidate:3 for any such office, and to any federal, :3ta te, county, or municipal election or primary for any other purpose whatsoever, unless otherwise provided. Also, the qual~_fications challenge statute, O.C.G.A. of "any Despite 1n a by

§

21-2-

5, grants a right tC) challenge candidate," the Superior Presidential

the qualifications

regardlE~ss of the specific

type of election. contestants

Court'~3 finding to the contrary,

PreferE~nce Primary are specifically O.C.G.A. § 21-2-193.

designated

statute as "candidat~es." Respondent

alsc) argued

in the Court below that a "candidate" committee of a see have

must be "certified political O.C.G.A. party"

by the state executive

or must submit "a notice of candidacy," and that neither O.C.G.A. of such conditions

§

2l-2-5(a:,

taken place as to Respondent. however,

§

21-2-5 (b) provides, of any candidate of such be

that a cha:_Ienge of the qualifications

may be made "at any time prior to the election candidate," and ReSI)ondent's political

party would presumably prior to the general

filing a certificat~_on of his nomination election. "notice Georgia Addition2llly, Applicant

submits that "certified" defined

and

of candidac~1" are not specifically Election

terms in the

Code, and one could argue that the list of submitted by 21-2-193

Presidential Respondent's constituted

PreferE~nce Primary candidates politic:al party pursuant

to O.C.G.A.

§

a "cert:~fication" or a "notice of candidacy."

Page -10-

Accordingly, challenge Preference

i1: is apparent

that the Georgia

qualifications

statute does, in fact, apply to the Presidential Primary; that the Superior Court did properly Petition; have

subject-matter Superior 2.

jurifldiction of Applicant's

and that the otherwise.

Court comm:_tted reversible The Superior

error in holding

Court erred in holding to a challenge

O.C.G.A.

§

21-2-5

unconstitutional of a candidate

as applied

to the qualifications Primary. for lack of argument that

in the Presidential

Preference

The Superior subject-matter First

Court also granted dismissal

juri~;diction based upon Respondent's Amendment associational

(and Fourteenth)

rights of a right to determine Primary ballot.

political

party giVE! the party the exclusive on j.ts Presidential contended

whom to include

Preference

While Respondent associational situation ballot

that First Amendment in the

right~; of a party are "most often litigated"
~l

in which

party refuses to permit Party of U.S. v.

a name on a primary 50 U.S. Cleland,

(citing Democratic

Wisconsin,

107, 101 S. Ct. 101U, 67 L. Ed. 2d 82 (1981); Duke v. 954 F. reverse 2d 15:26 (11th Cir. 1992)), he also claimed

that "the right

is also trUE!" in that the party has the unchecked certain names on its primary ballot.

to require however,

Respondent,

cited no allthority for the latter proposition. CClurt essentially adopted Respondent's of State may not

The Superior argument,

as the COllrt held that the Secretary

Page -11-

interfere

with a po~_itical party's and the Secretary's electoJ~s. However,

determination

of its

candidates, presidential

authority

is limited to examining

none of the cases or statutes are authority for

cited by the Superic)r Court or by Respondent the conclusion associational require that a political right~; deprive party's

constitutional of its ability to

a state government

that candid~ltes meet constitutional requiren~nts

or statutory

eligibility

for office in order to be placed on the

state ballot. In point of fac:t, O.C.G.A. the Georgia to challenge

§§

21-2-5(b)

and

(c) authorize elector, of

Secretal:y of State, or an eligible a candj.date's qualifications, empowered to determine

Georgia

and the Secretary whether

State is thereafter lS qualified

the candidate 21-2-5(e) gives

to seek and hold office.

O.C.G.A.

§

an elector unsucces~;fully challenging qualifications decision County.

a candidate's of State's

the l:ight to appeal the Secretary in the Superior

by filing ~lpetition

Court of Fulton

Given the ~;tate' right to run its own elections, s to the associational rights of the the Superior Court of

nothing pertaining Respondent's subject-matter Superior

politic:al party deprived jurisdiction

over Applicant's

case, and the

Court comm:_ tted error in holding

otherwise.

Page -12-

3.

The Superior

Court erred in holding in dismissing to perfect

that Applicant action

failed to perfect

sll~rvice and

Applicant's service.

based upon a findinc;rof failure The Superior properly Applicant

Court also ruled that, even if the Court to O.C.G.A. personal

had jurisd:_ction pursuant "failed entirely

§

21-2-5,

to perfect

service upon and O.C.G.A.

Respondent(s) 9-11-4.

as recIuired by O.C.G.A.

§

21-2-5(e)

§

The Superic)r Court apparently

believed

Applicant's

case

to be subject to dimnissal that "service [R]espondent's

for the reason argued by Respondent was made by mailing to

of the summons and complaint attorney." Respondent

claimed that personal for a viable suit. Public

service or a waiver However,

thereof was required

the C2lse of DouGlas Asphalt

Co. v. GeorGia

Service Commission, controlling.

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

(2003) is

In DouGlas Asphalt,

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

appeal of an adminL,trative tribunal, personal service

decision

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 ln

of the court.

noted t:hat service of appeals

is governec! by O.C.G.A.

§

5-3-21, which provides of appeal

part that "[a] copy of the notice

shall be

served on all partiE!s in the same manner prescribed

by Code

Page -13-

Section

5-6-32."

O,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 mad(~ 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 sim:_Iar motions, orders, and proceedinqs may be made by the attorney or party fiL_ng the notice or paper, in person or by mai:_, and proof thereof shown by acknowledcJment of the attorney or party served, 0::: by certificate of the attorney, party, or other person perfecting service.

Therefore, Respondent accordance

in 1:he instant

case, service of the Petition was in

upon

Obama by mailing with Geo::gia law.

same to his attorney

Applicant

further notes, however,

that even if the service valid, O.C.G.A. to perfect

by mail were for an~1 reason not considered

§ 5-3service

21(b) states in pert:inent part that "[f]ailure on any party shall flot work dismissal,

but the superior

court

shall grant continu2lnces and enter such other orders as may be necessary appeal." to permit Dismissal a just and expeditious determination of the

based upon the issue of service was therefore Court erred to the extent that service.

inappropriate, its dismissal

and t:he Superior

was b2lsed upon failure to perfect

Page -14-

4.

The Superior

Court erred in failing

to reverse

the

Final Decision

of the Secretary

of State on the basis of the in failing to determine to

ALJ's and the Secre'i:aryof State's errors the proper placemen'l:of the burden

of proof and in failing

apply such determina.tion in ruling upon Applicant's In dismissing Superior ]~pplicant's Petition For Judicial

challenge. Review, the

Court failed to address

the ALJ's complete

failure to of

make a determinatiolr as to the proper placement proof as between apply the burden On January Determination the parties,

of the burden failure to

as well as the ALJ's

of proof to his factual and legal conclusions. 19, 2012, Applicant filed a "Motion For

of Placement

of Burden of Proof" in which he sought 273 Ga. 106, 108-109, to affirmatively 538

an order, pursuant S.E. 2d 430, 433 establish

t:o Havnes v. Wells, (2()00), requiring

Respondent

his eligillility for office. motion in advance

Not only did the ALJ not of trial, as was requested or resolved the

rule on Applicant's by Applicant, motion

but tile judge never even addressed

in his final ruling. that, with certain

OSAH Rule 616-:.-2-.07 (1) provides exceptions burden not appl~_cable herein,

"[t]he agency shall bear the Further, OSAH Rule 616-1-2of the hearing,

of proof in ~lll matters."

.07(2) states that, "[p]rior the Administrative requires

to the commencement

JJaw Judge may determine

that law or justice of proof."
Page -15-

a different: placement

of the burden

The challenge initiated of State. pursuant

1:0 Respondent's

qualifications

herein was not

by the apIJlicable agency, Rather, the challenge

the Office of the Secretary by Applicant, complaint

was commenced

to O.C.G.A,

§

2l-2-5(b),

"by filing a written

with the Secretary challenge, procedure, challenge

()f State .... "

Upon the filing of Applicant's as a matter of

the Secr(~tary of State was required also pUr!lUant to O.C.G.A. to the OSAH for a hearing.

§

21-2-5(b),

to refer the

Prior to the t]~ial before the ALJ, the "agency," Office of the Secret:ary of State, made no determination candidate qualificat:ions; issued no decision; arid it would have therefore

i.e. the of

and was not a party been inappropriate suggested must

to the challenge,

for the agency to bear the burden by OSAH Rule 616-1-;:-.07(1). have been placed ineligible) However, required, regarding
rd.

of proof as initially

The burden

of proof therefore

eit:her with Applicant

(i.e., to prove Respondent eligible).

or with Respondent

(i.e., to prove himself

under Havnes,

273 Ga. at 108-109, Applicant "to disprove

was not

and shoulci not be required, [Responderit Obama's]

anything

eligibility

to run for office .... "

The significan(:e of the ALJ's of proof is immediately apparent.

failure to rule on the burden Respondent and his lawyer and such

failed to attend tr~_al and failed to offer any evidence, failures were intent:ional, as shown by Respondent's

counsel's

Page -16-

letter of January Applicant Respondent

2~j, 2012

(Exhibit "F").

If Respondent

did, as

contends,

bear the burden of proof at trial, then his burden,

can in nCl way be said to have satisfied was erltitled to judgment.

and Applicant Superior

Thus, the failure of the of State, and the ALJ, on of proof is

Court to rE!VerSe the Secretary

the basis of their j~ailure to address the burden reversible 5. error. The Super:i.orCourt erred in failing of the Secretary

to reverse

the

Final Decision ALJ's

of State on the basis of the in finding as "fact"

and the Secrei!:aryof State's errors was born in the United was a citizen birth.

that Respondent Respondent's

States and that States at the

mother

of the United

time of Respondent'B The ALJ's

rulirlg, and consequently

the Secretary

of State's

ruling, on Applicant:'s challenge relied upon certain "considered." Respondent Respondent alleged

to Respondent's

qualifications

"facts" which the ALJ said he 1) that

Specj_fically, the ALJ found as "fact":

Obama waf; born in the United Obama's rwther was a citizen

States; and 2) that of the United States at

the time of RespondE!nt's birth. However, burden as set: forth hereinabove, h:_s eligibility Respondent carried the as

of proving

for office.

Inasmuch

Respondent

and his attorney

did not appear

for trial and did not as the "natural born Page -17-

offer any evidence

\Jhatsoever, and inasmuch

Citizen"

requirement: for presidential of Respondent's

eligibility

mandates

an of

examination

place of birth and the citizenship at the time of Respondent's birth

both of Respondent'~) parents (as is explained burden

he::einbelow), Respondent

failed to carry his

of proof as to his eligibility,

and the above "facts" The Superior Court's

found by the ALJ wel:e legally unsupported. failure to reverse t:he Secretary

of State, and the ALJ, with error.

regard to these findings

of "fact" is reversible

6.

The Superior Court erred in failing

to reverse the

Final Decision of the Secretary of State on the basis of the ALJ's and the Secre1:;aryof State's error in finding that Respondent qualifief:: as a "natural born Citizen" pursuant to Article II of the United States Constitution, despite the fact at the

that Respondent's fc:Lther was not a United States citizen time of Respondent'f:1 birth.
The ALJ's was grounded (and subsequently the Secretary

of State's)

ruling

in the ALJ's adoption

of the non-binding
v. Governor

reasonlng of Indiana,

of the Indiana Court. of Appeals 916 N.E. person

in Ankenv

2d 678 (20(19), with regard to the ALJ's as a natural born citizen he became a United

finding that a

qualifies

if he was born in the

Uni ted States becaw:e Although, no evidence his burden

States citizen at birth. there was absolutely at trial to carry place of birth,
Page -18-

as pc,inted out hereinabove,

whatsoe\"er submitted of proof and establish

by Respondent Respondent's

the ALJ's ruling that a person's automatically pursuant

birth in the United

States

confe::s the status of "natural born Citizen" II of the United States Constitution of the applicable is

to Article

unfounded; is contrary

is an inc:orrect statement

law; and

to the l:uling of the United

States Supreme Court in

Minor v. Happersett, 162 (1875). Minor Article

88 U.S. 162, 167, 22 L. Ed. 627, 21 Wall.

is bindirlg authority

for the proposition

that the

II phrase

"natural born Citizen" (2) parents themselves

refers to a person born who were then (at the

in the United

State~: to two

time of the child's birth) Because,

United

States citizens. at trial States

as Applicar.t's undisputed Respordent Obama's

evidence

demonstrated, citizen

father was not a United birth, Respondent requirement

at the time of Respondent's

does not for the

meet the Article presidency,

II "natural born Citizen"

and the ALJ and the Secretary The Superior

of State committed Court thus likewise the ALJ and the

error in finding ott.erwise. committed Secretary reversiblE

error in failing to reverse

of State cn this issue.1 CONCLUSION

For the above and foregoing requests

reasons, Applicant

respectfully For

that the SLpreme Court grant this Application

IThis issue will be more fully briefed by Applicant upon the granting of this Application For Discretionary Appeal. Page -19-

Discretionary Superior

Appeal

and review and reverse

the decision

of the

Court in t:lis case. submitted, this 12th day of March, HATFIELD & HATFIELD, 2012.

Respectfully

P.C.

At~rney Hatfic\fd \ ark for Ap~cant Georgia Bar No. 337509 201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

3J502

Page -20-

CERTIFICATE
I,

OF SERVICE for Applicant, do hereby Application For

J. Mark Hat:~ield, Attorney

certify that I have this day served the foregoing Discretionary Appea:_ upon: Michael K. Jablonski Attorney at Law 2221-0 Peachtree Road NE Atlanta, Georgia 30309
Mr.

Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334 by placing addressed a copy o~: same in the United envelope ~lith sufficient States Mail in a properly affixed thereto in

postage

order to insure prO[ler delivery, Jablonski

and by emailing

same to Mr. same

at michae].~ablonski@comcast.net, Kemp at vrusso@sos. CB. GOV. 2012. HATFIELD

and by emailing

to Secretary

This 12th day of March,

& HATFIELD,

P.C.

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

3J.502

Mark Hatfield
From: Sent: To: White, Con nie [Connie.White@fultoncountyga.gov] Friday, Mar~h 02, 201211:04 AM david. is.farrar@gmail.com; codyj udy@hotmail.com; mhatfield@wayxcable.com; van@/ibertylegalfoundation.org; m ichael.jablonski@comcast.com; cale@sos.ga.gov; vrusso@sos.ga.gov; dpwelden@gmail.com Order Gran-:ing Respondent Barack Obama's Motion(s) to Dismiss-2012cv211398, 2012cv211b27, 2012cv211528, 2012cv211537 DOC006.pdf

Subject:

Attachments:

DOC006.pdf KB)

(563

Hello, Please find attached Motion(s) to Dismiss Wright's office. Thank you, Connie White

a stamp filed copy of the Order Granting Respondent Barack Obama's 2012cv211398, 2012cv211527, 2012cv211528, 2012cv211537 from Judge

PLAINTIFF'S ~
$)

~

1

-~--EXHIBIT
,UI ,)

t

7\

A
*

IN TIlE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA
FILE NO. 2012 CNILACTION *

* , LAX, CODY ROTH,

* *

©@~\1\ r
rED INOFFICi \~ MAR 2.1011 . ~
DEPUTY CLERK SUPERIOR N COUNTY.

COURT
GA ~

~

~

,",--'

* *
v.

* CARL SWENSSON

FILE NO. 2012CV211527 CNILACTION

*

* *

*
v.

* KEVIN RICHARD POWELL,

FILE NO. 2012CV211528 CNILACTION

*

* *

Farrar, et al. v. Ohama, et al: Civil Action No. 2012CV211398 Swensson v. Obama: Civil Action No. 2012CV211527 Powell v. Obama: Civil Action No. 2012CV211528 Welden v. Obama: Civil Action No. 2012CV211537
ORDER GRANTING MOTION(S) TO DISMISS

Page 1

** * DAVIDP. WELDEN
CNILACTION FILE NO. 2012CV211537

*

* *

ORDER GRANTING ]!illSPONDENT The above-captioned

BARACK OBAMA'S MOTION(S)

TO DISMISS

actions are before the Court on the Petition(s)

for Judicial Review

of Petitioners David Farrar, et al., Carl Swensson, Kevin Richard Powell, and David P. Welden, which were filed in this Court on February Although initially 13, 2012 and February Superior 15, 2012, respectively. the matters were

assignl~d to four (4) different

Court Judges,

transferred to the Honorable

Chief Judge Cynthia D. Wright, to whom the fust-filed case was because each is

assigned (Farrar, et al. v. Obama, et aI., Civil Action File No. 2012CV211398), an appeal of the same decil:ion issued on February 3,2012 by Administrative

Law Judge Michael

M. Malihi in the Office of State Administrative Hearings and thereafter adopted by the Secretary of State. Presently before the Court is the Motion to Dismiss of Respondent Barack Obama, filed

in each of the above-referl~nced actions on February 27, 2012. The Motion(s) to Dismiss are identical in form and substance and will, therefore, be addressed by the Court in one to

consolidated

Order to be applied in each case.

Now, having considered

the Motion(s)

Dismiss, the other pleading:;; of record, and applicable Georgia law, the Court fmds as follows: Petitioners filed thdr Appeal/Petition for Judicial Review of the Secretary of State's

decision in this Court pursUimt to O.C.G.A. § 21-2-5(e), which provides as follows:
Farrar, et al. v. Obama, et al: Civil Action No. 2012CV211398 Swensson v. Obama: Civil Action No. 2012CV211527 Powell v. Obama: Civil Action No. 2012CV211528 Welden v. Obama: Civil Action No. 2012CV211537

ORDERGRANTINGMOTION(S) TO DISMISS

Page 2

The elector filing the challenge or the candidate challenged shall have the rlght to appeal the decision of the Secretary of State by filing a petition in the Superior Court of Fulton County within ten days after the entry of the final decision by the Secretary of State. The filing of the petition shall not itself stay the decision of the Secretary of State; however, the reviewing court may order a stay upon appropriate terms for good cause shown. As soon as possible after servi,: e of the petition, the Secretary of State shall transmit the original or a certified copy of the entire record of the proceedings under review to the reviewing court. The review shall be conducted by the court without a jury and shall be confined to the record. Petitioners allege that Respondent thus, is not qualified for candidacy Barack Obama is not a "natural born citizen"! and, 2012 Presidential Primary. Despite its

in Georgia's

application in the court be low, this Court does not believe that a.c.G.A. case because the challenge at issue involves the Presidential Preference

§ 21-2-5 applies in this
Primary, which by its

terms, is an opportunity for electors "to express their preference for one person to be a candidate for nomination." O.C.G.A. § 21-2-191. The Presidential Preference Primary apportions

delegates, but neither elects nor nominates candidates for the Presidency. Respondent Barack abama is not yet a "candidate" for the Presidential because the Presidential Prderence

Therefore, because

election in question and

Primary is not an "election" within the meaning of O.C.G.A. § 21-2-2(5) and 21-2-5.

§ 21-2-1, et seq., O.C.G.A. § 21-2-5 does not apply. See a.c.G.A.

Moreover, it is well established in Georgia as elsewhere in the United States that voters vote on "presidential electors," rather than voting directly for a candidate, when voting for the The political parties' candidates §§ 21-2-191 to

Office of President of the lJnited States. O.C.G.A. § 21-2-172.

for President are determined by convention of the political party. See a.c.G.A.

1 Petitioners claim is based, in pa:lt, on a contention that at the time of his birth, Respondent's father was not a citizen of the United States.

Farrar, et al. v. ahama, et a/: Civil Action No. 2012CV211398 Swensson v. Obama: Civil Action No. 2012CV211527 Powell v. ahama: Civil Action No. 2012CV211528 Welden v. ahama: Civil Action No. 2012CV211537
ORDER GRANTING MOTION(S) TO DISMISS

Page 3

21-2-200.

In the case of a democratic candidate for President, the Democratic Party of Georgia

has the sole discretion to determine the qualifications of potential candidates and the name(s) to be included on its Presidential Preference Primary ballot. O.c.G.A. § 21-2-193; see Duke v. Cleland, 954 F.2d 1523 (l1th Cir. 1992); Duke v. Cleland, 884 F. Supp. 511, 515-16 (N.D. Ga. 1995). The Secretary of State is prohibited by the Fourteenth Amendment of the United States Constitution and Georgia statutory law from infringing on the associational rights of the Democratic Party of Georgia and is limited in its authority to examining presidential electors. O.c.G.A. §§ 21-2-172 to 21-2-200; Duke v. Cleland, 884 F. Supp. at 515-16 (N.D. Ga. 1995). Even if the Secretary of State believes that a challenger's claims are valid, the Secretary of State may not interfere with a political party's internal decision-making. rd. Based upon Georgia law and governing precedent, the Court finds it has no authority to exercise jurisdiction over the Democratic Party of Georgia's selection of the names(s) to be included in the Presidential Preference Primary or to examine the qualifications of those individuals. Therefore, the"e actions should be DISMISSED in accordance with a.C.G.A. § 911-12(b). Additionally, evenlf the Court had determined that O.C.G.A. § 21-2-5 applied to these matters and provided the Court with. appellate jurisdiction over same, the Court finds that Petitioners have failed entirely to perfect personal service upon Respondent(s) as required by a.c.G.A. § 21-2-5(e) and o.C.G.A § 9-11-4. See Bible v. Bible, 259 Ga. 418, 418 (1989). Therefore, IT IS EEREBY ORDERED AND ADJUDGED that Respondent Barack Obama's Motion(s) to Disniss in the above matters are GRANTED, and the above actions are hereby DISMISSED.
Farrar, et al. v. Obama, et a/: Civil Action No. 2012CV211398 Swensson v. Obama: Civil Action No. 2012CV211527 Powell v. Ohama: Civil Action No. 2012CV211528 Welden v. Ohama: Civil Action No. 2012CV211537 ORDER GRANTING MOTION(S) TO DISMISS

Page 4

SO ORDERED this the

2nd

day of March, 2012.

c:----~\-fV'\~,,~
Fulton County Superior Court Atlanta Judicial Circuit

fJudge

Copies to: Via Email and U.S. Mail: David Farrar, Pro Se 2059 Cavesprong Road Cedartown, Georgia 30125 david. is. farrar@gmail.com Cody Robert Judy, Pro Se 3031 Ogden Avenue, Suite #2 Ogden, Utah 84403 codviudv(cV,hotmail.com J. Mark Hatfield, Esq. Hatfield & Hatfield, P.c. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 mhatfield@wayxcable.com Van R. Irion, Esq. Liberty Legal Foundation 9040 Executive Park Drive, Suite 200 Knoxville, TN 37923 van(cV,libertvl galfoundatiorl. org e Michael K. Jablonski, Esq. 2221-D Peachtree Road, NE Atlanta, Georgia 30309 michael. ablonski@comcast.net

i

Farrar, eta!. v. Ohama, eta!: Civil Action No. 2012CV211398 Swensson v. Obama: Civil Action No. 2012CV211S27 Powell v. Ohama: Civil Action No. 2012CV211528 Welden v. abama: Civil Action No. 2012CV211537
ORDER GRANTING MOTION(S) TO DISMISS Page 5

Carn-Anh Le, Esq. Vincent Robert Russo, Jr., Esq. Office of the Georgia Secretary of State Executive Office 214 State Capitol Atlanta, Georgia 30334 cale@sos.ga.gov vrusso(cV,sos.ga.gov

David P. Welden, Pro Se 5530 Wright Road Powder Springs, Georgia ]0127 dpweIden@gmail.com

Farrar, et al. v. ahama, et al: Civil Action No. 2012CV211398 Swensson v. ahama: Civil Acti:m No. 2012CV211527 Powell v. ahama: Civil Action No. 2012CV211528 Welden v. ahama: Civil Action No. 2012CV211537 ORDER GRANTING MOTION(:;) TO DISMISS

Page 6

General Civil Case Filing Information Form (Non-neC)
Court
/if

,

FILED IN
MM-DD-YY

o State

Superior

Plaintiff(s)
SWENSSON, CARL
Last First Middle L Suffix Prefix Maiden

Defendant(s)
OBAMA, BARACK
Last First

DEPUTY CLERK SUPERIOR COURT

[FEB:~~12
FU~,Gf, Maiden

Middle L Suffix Prefix

Last

First

Middle L Suffix Prefix

Maiden

Last

First

Middle L Suffix Prefix

Maiden

Last

First

Middle L Sutlix Prefix

Maiden

Last

First

Middle L Suffix Prefix

Maiden

Last

First

Middle L Suffix Prefix

Maiden

Last

First

Middle L Suffix Prefix

Maiden

No. of Plaintiffs

_1

_

No. of DefelIldants _1 D Pro Se
Sutlix

_

PIaintiff/Petitioner's
HATFIELD, J. MARK
Last First

Attorney
Middle L

Bar # 337509 Check Primary Type (Check only ONE) If Tort is Case Type: (Check no more than TWO)
D Auto Accident
Wills/Estate Real Property Dispossessory/Distress Personal Property Equity Habeas Corpus Appeals, Reviews Post Judgment Garnishment, Attachment, or Other Relief Non-Domestic Contempt Tort (If tort, fill in right column) Other General Civil SpecifY_

o o
o

Contract/Account

D PremisesLiability Negligence SpecifY Medical Liability D Other Professional Product Malpractice

o

o o o
o
~

o

Are Punitive Damages Pleaded? DYes

0 No

o
o

o

PLAINTIFF'S ~ EXIjIBIT
.tJ

i ~
,1( ~

IN THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA
136 PRYOR STREET, ROOM C-103, ATLANTA, GEORGIA 30303

SUMMONS CARL SWENSSON
Case No.:

2..012 C V

2/1..52?

Plaintiff,
vs.

BARACK OBAMA

Defendant

TO THE ABOVE NAMED DEFENDANT(S):

Your are hereby summoned and required to file with the Clerk of said Court and serve upon plaintiff's attorney, whose name and address is: J. MARK HATFIELD

HATFIELD & HATFIELD, P.C. 201 ALBANY AVENUE P.O. BOX 1361 WAYCROSS, GEORGIA 31502 (912) 283-3820
An answer to the complaint which is herewith served upon you, within 30 days after service of this summons upon you, exclusivl~ of the day of service. IF YOU FAIL TO DO SO, JUDGMENT BY DEFAULT WILL BE TAII(EN AGAINST YOU FOR THE RELIEF DEMANDED IN THE

This COMPLAI~~

U

._dayof

To defendant upon whom this petition is served: This copy of complaint and summom: was served upon you , 20 _

Deputy Sherriff

Instructions:

Attach addendum

sheet for addi tional parties if needed, make notation on this sheet if addendum

is used

IN THE: SUPERIOR

COURT OF FULTON COUNTY

], 5 2012

STATE OF GEORGIA
DEPUTY CLERK SUPERIOR COURT

CARL SWENSSON, Petitioner

*

FUL];l~~~

I

* *

CIVIL ACTION FILE NO. 20/2 c.v 2..11.527

V.
BARACK OBAMA,

* *
~ie:TITION FOR JUDICIAL REVIEW Carl Swensson, by and through For Judicial Review

Respondent

Now comes Petitioner undersigned against counsel,

and files this Petition

Respondent

Earack Obama as follows:

1.
This action is an appeal of a Final Decision Secretary Swensson's of State E1rian P. Kemp denying challenge to the qualifications candidate, of Georgia Carl Barack Petitioner

of Respondent

Obama, a presidential the President eligible

to seek and hold the Office of Respondent Obama

of the United

States, and finding

as a candidate

for the presidential 2.

primary

election.

This Court has jurisdiction O.C.G.A.

of this appeal pursuant

to

§

21-2-5(e).

3.
Petitioner Clayton County, Carl Swensson Georgia. is a natural person residing in

He is a registered

voter in the State Page -1-

of Georgia,

and he is an elector eligible elf the United States, the Respondent 4.

to vote for candidates including presidential

for the Presidency candidate

Barack Obama,

herein.

Respondent letter Georgia

Obama,

on or before October Committee

31, 2011, submitted Party of

a

to the ExecuLive

of the Democratic

seeking to be listed on the Georgia PreferE!nce Primary Ballot. Democratic

Democratic on

Presidential November

Consequently,

1, 2011, Georgia pursuant

Party Chairman

Mike Berlon

submitted, Respondent candidate Preference

to O.C.G.A.

§

21-2-193,

the name of as a

to the Georgia

Secretary

of State's Office Democratic

to be listed on the Georgia Primary Ballot. 5.

Presidential

Pursuant

to O.C:.G.A.

§

21-2-5(b),

Petitioner

timely filed to the

with the Georgia qualifications Presidency contended CitizenU

Sec:retary of State a written

challenge

of Respondent

to seek and hold the Office of the Petitioner's challenge born I, Clause

of the United that Respondent

States.

does not meet the "natural of Article

eligibilit}' requirement

II, Section

5 of the United

Stat.es Constitution.

6.
Also pursuant secretary to O.C.G.A.

§

21-2-5(b),

the Office

of the for

of State t.hereafter referred

Petitioner's

challenge

Page -2-

a hearing

before

an administrative Hearings.

law judge of the Office of

State Administrative

7.
Pursuant conducted Michael to proper notice to the parties, a hearing was Law Judge

on January

26, 2012 before Administrative Petitioner was present evidence

M. Malihi.

at trial and submitted and testimony Respondent and

into the record, pertaining

through

counsel,

to the issues raised by his challenge. however, did not appear

his attorney, submit

for trial and failed to

any evidence

or testimony

whatsoever. 8.

On February initial Decision,

3, 2012, the administrative a copy of which is attached

law judge issued an hereto as Exhibit for the

"A," finding Respond.ent eligible presidential primary election.

as a candidate Pursuant

to O.C.G.A. was reported

§

21-2-5(b),

the administrative Secretary of State.

Jaw judge's

Decision

to the

9.
On February Georgia Secretary 7, 2012, pursuant to O.C.G.A.

§ 21-2-5(c),

of State Brian P. Kemp issued a Final Decision, hereto as Exhibit "B," adopting the

a copy of which is attached initial Decision

of the administrative

law judge and denying

Petitioner's

challenge.

Page -3-

10. Pursuant seeks judicial to O.C.G.A.

§

21-2-5(e),

Petitioner

now appeals

and

review of the Secretary

of State's Final Decision of that Final rights of the inferences,

in this case, and f~rther Decision, Petitioner conclusions, (a) state; (b) of State; (c) (d) (e)

seeks a reversal

for the reason that substantial have been prejudiced and decisions because

the findings,

of the Secretary

of State are: and laws of this

In violation

of the Constitution

In excess of the statutory

authority

of the Secretary

Made upon unlawful Affected Clearly

procedures;

by other errors of law; erroneous in view of the reliable, and by an abuse probative,

and substantial (f)

evit.ence on the whole record; and capricious

Arbitrary

and characterized exercise

of discretion

and a clearly unwarranted 11.

of discretion.

In particular, specific Decision (a) Secretary grounds

Petitioner

would enumerate

the following Final

for review of the Secretary

of State's

in this ca:::e: The administrative law judge, and consequently Decision the

of State s.dopting the initial

of said judge,

erred in issuing a ::::ingle ruling applicable

to the cases of

Page -4-

Petitioner counsel)

and cert2lin other individuals challenged

(represented by separate

who independently

Respondent's testimony; differed from

qualifications,

desf1ite the fact that the evidence; advanced by Petitioner Swensson

and legal argument

that offered by such other individuals; (b) Secretary The administrative of State adopting law judge, and consequently the initial Decision the

of said judge,

erred in finding as "fact": United States;

1) that Respondent mother

was born in the was a citizen birth. the of

and 2) that Respondent's

the United
(c)

States at the time of Respondent's The administrative of State adopting

law judge, and consequently the initial two Decision'of

Secretary

said judge, images of

erred in considering Respondent's certificates

as evidence

(2) electronic

purport,:=d"long form" and "short form" birth which were attached to a letter sent, prior to of State, despite or admitted the fact that

trial, by email to the Secretary such images were never tendered accordance Petitioner

into the record in

with the rules of evidence;

and despite the fact that to compare such images as

was never given an opportunity

wi th the originals documentary applicable (d) Secretary

o::~ have the images established to according

evidence

to the rules of evidence

to the superior

courts of this state; the

The admini~::trative law judge, and consequently of State adopting the initial Decision

of said judge,

Page -5-

erred

in failing to make a determination of the burden

as to the proper

placement burden

of proof and in failing to apply the factual and legal conclusions in

of proof in reaching

Petitioner's

case, d.espite the fact that Petitioner "~otion For Determination

specifically of

filed a pre-trial Burden of Proof";

of Placement

(e) Secretary erred appear

The administrative of State adopting

law judge, and consequently the initial Decision

the

of said judge, failure to

in failing to find Respondent's for trial an event of default challenge basis;

deliberate

and in failing to sustain qualifications on that

Petitioner's independent (f) Secretary

to Respondent's

The administrative of State adopting

law judge, and consequently the i0itial Decision

the

of said judge,

erred in adopting in Ankeny

the reasoning

of the Indiana Court of Appeals

v. Governcr of Indiana and in finding that a person
qualifies as a "natural born Citizen," pursuant being of to

automatically Article

II of the United

States Constitution,

by merely

born in the United his parents; (g) Secretary

~:tates, without

regard to the citizenship

The administrative of State adopting

law judge, and consequently the initial construe Decision

the

of said judge,

erred in failing to properly States Supreme

the ruling of the United

Court in Minor v. Happersett;

Page -6-

(h) Secretary

The admin::.strative law judge, and consequently of State 2ldopting the initial Decision qualifies

the

of said judge,

erred in finding that Respondent Citizen" pursuant to Article

as a "natural born

II of the United States father was not a birth; and the

Constitution, United

despite

the fact that Respondent's at the time of Respondent's

States citizen

(i) Secretary

The administrative of State adopting

law judge, and consequently the initial Decision

of said judge, to this a of

erred in failing at Petitioner's Court, finding for a determination of contempt,

request to certify

of appropriate

action including behavior

the facts of the contemptuous counsel) in knowingly,

Respondent

(and Respondent's

intentionally, Petitioner's

and deliberately Notice to Produce

failing to comply with served upon Respondent. 12.

Petitioner expedited

respectfully

requests

that this Court grant an due to the fact is (3)

hearing

and review of this Petition Presidential Preference

that the Georgia scheduled

Primary Election

to take place on March

6, 2012, less than three

weeks hence. 13. Pursuant respectfully Decision to O.C.G.A. requests

§

21-2-5(e),

Petitioner

further

that this Court order a stay of the Final of State finding Respondent eligible to

of the Secretary

Page -7-

be included presidential Court

on the ballot primary

in Georgia as a candidate pending

for the of this

election

a final judgment

reviewing

said Final Decision. 14.

This Petition

is timely

filed within ten by the Secretary 15.

(10) days after the of State.

entry of the Final Cecision

Pursuant

to O.C.G.A.

§

21-2-5(e),

the Secretary

of State, 'as

soon as possible transmit entire

after service of this Petition,

is required to copy of the

to this Court the original

or a certified

record of the proceedings Petitioner

under review. respectfully requests

WHEREFORE, that this Court: (1)

Carl Swensson

Conduct

a hearing

and review the record in this case on

an expedited (2) Secretary the ballot election (3) Secretary Article removing Georgia,

basis; a stay of the Final Decision Respondent eligible of the on

Grant Petitioner of State finding in Georgia

to be included

as a candidate

for the presidential

primary

pending

a final judgment

of this Court; the Final Decision of the

Issue an order reversing of State, "natural

finding that Respondent born Citizen"

does not meet the for the presidency, ballot in

II

requirement

Respondent's

name from the presidential in contempt

and adjudg:.. Respondent ng

of court for his

Page -8-

deliberate

failure to comply with Petitioner's proceedings; and

Notice

to Produce

in theadministrath'e (4)

Grant suc~ other and further relief as the Court may

deem just and proper. This 15th day c:f February, 2012.

HATFIELD

& HATFIELD,

P.C.

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

31502

Page -9-

OFFICE OF STATE ADMINISTRATIVE ST ATE OF GEORGIA
DAVID FARRAR, LEAI-I LAX, CODY JUDY, THOMAS MALAREN, LAU.RIE ROTH, Plaintiffs,

HEARINGS

Docket Number: OSAH-SECST ATE-CE12151 36-60-MALIHI Counsel for Plaintiffs: Orly Taitz Michael Jablonski

v.
BARACK OBAMA.

Counsel for Defendant:

Defendant.

DAVID P. WELDEN, Plaintiff,
v.

Docket Number: OSAH-SECST ATE-CE12151 37-60-MALIHI Counsel for Plaintiff: Van R. Irion Michael Jablonski

BARACK

OBAMA, Counsel for Defendant:

Defendant.

CARL SWENSSON, Plaintiff,
v.

Docket Number: OSAH-SECSTATE-CE1216218-60-Mi\LIHI Counsel for Plaintiff:

J. Mark Hatfield
Michael Jablonski

BARACK OBAMA, Counsel for Defendant: Defendant.

KEVIN RICHARD POWELL, Plaintiff,
v.

Docket Number: OSAH-SECST ATE-CE1216823-60-MALIHI Counsel for Plaintiff: J. Mark Hatfield Michael Jablonski

BARACK OBAMA, Counsel for Defendant: Defendant.

DECISION

I

Plaintiffs allege that Defendant President Barack Obama does not meet Georgia's eligibility requirements fot candidacy in Georgia's 2012 presidential primary election. Georgia law mandates that candidates meet constitutional and statutory requirements for t,he office that they seek. O.C.G.A. § 21-2-5(a). Mr. Obama is a candidate for federal office who has been certified by the state executive committee of a political party, and therefore must, under Georgia Code Section 21-2-5, meet the constitutional and statutory qualifications for holding the Office of the President of the United States. !d. The United States Constitution require!;that a President be a "natural born [c]itizen." U.S. Const. art. II, § 1, d. 5. As required by Georgia Law, Secretary of State Brian Kemp referred Plaintiffs' challenges to this Court for a hearing. O.C.G.A. § 21-2-5(b). A hearing was held on January 26,2012 .. The record closed on February 1,2012. Plaintiffs Farrar, Lax, Judy, Malaren, and Roth and their counsel Orly Taitz, Plaintiffs Carl Swensson and Kevin Richard Powell and their counsel J. Mark Hatfield, and Plaintiff David P. Welden and his counsel Van R. Irion, all appeared and answered the call of the case. However, neither Defendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, the Court would entcr a default order against a party that fails to participate in any stage of a proceeding. Ga. Compo H. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the

I This Decision has been consolidated to include the four challenges to President Obama's candidacy filed by Plaintiffs David Farrar. et al., David P. Welden, Carl Swensson. and Kevin Richard Powell. Section I of this Decision applies only to the case presented by Ms. Taitz on behalf of Mr. Farrar and his co-plaintiffs, Leah Lax, Cody Judy, Thomas Malaren, and Laurie Roth, and does not pertain, in any way. to the cases of Me. Welden, Mr. Swensson, and Mr.Powell. Section II applies to all Plaintiffs.

2

Defendant's failure to appl~ar,Plaintiffs asked this Court to decide the case on the merits of their aTf,ruments nd evidence. The Court granted Plaintiffs' request. a By deciding this matter on the merits, the Court in no way condones the conduct or legal scholarship of Dl::fendant's attorney, Mr. Jablonski. This Decision is entirely based on the law, as well as the evidencl~and legal arguments presented at the hearing.

3

I.

Evidentiary Arguments of Plaintiffs Farrar, et al.
Plaintiffs Farrar, Lax, Judy, Malaren, and Roth contend that President Barack

Obama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr. Obama maintains a fraucLulently obtained social security number, a Hawaiian birth

certificate that is a compu ler-generated forgery, and that he does not otherwise possess valid U.S. identification papers. Further, Plaintiffs submit that Mr. Obama has previously held Indonesian citizenship, and he did not use his legal name on his notice of candidacy, which is either Barry Soetoro or Barack Obama Soebarkah. (PI.s' Am. Compi. 3.)

At the hearing, PI~lintiffs presented the testimony of eight witnesses2 and seven exhibits in support of their position. (Exs. P-I through P-7.) When considering the

testimony and exhibits, th:is Court applies the same rules of evidence that apply to civil nonjury cases in superior court. Ga. Compo R.

& Regs. 616-1-2-.18( 1)-(9). The weight

to be given to any evidenl;e shall be determined by the Court based upon its reliability and probative value. Ga. Camp. R.

& Regs.

616-1-2-.18(10).

The Court finds th(: testimony of the witnesses, as weil as the exhibits tendered, to be of little, if any, proba:live value, and thus wholly insufficient to support Plaintiffs' allegations.3 Ms. 1'aitz attempted to solicit expert testimony from several of the

witnesses without qualifying or tendering the witnesses as experts. See Stephens v. State, 219 Ga. App. 881 (1996) (the unqualified testimony of the witness was not competent evidence). For example, two of Plaintiffs' witnesses testified that Mr. Obama's birth

2

Originally, Ms. Taitz indicaled to the Court that she would offer the testimony of seven witnesses. However, during her closing ar:~ument, Ms. Taitz requested to testify. Ms. Taitz was sworn and began her testimony, but shortly thereaftl:r, the Court requested that Ms. Tatiz step-down and submit any further testimony in writing.
3 The credibility of witnesses is within the sole discretion of the trier of fact. In non-jury cases that discretion lies with the judge. See Mustang Tran:,p .. fnc. v. W.W. Lowe & Sons. fnc., 123 Ga. App. 350, 352 (1971).

4

certificate was forged, but neither witness was properly qualified or tendered as an expert in birth records, forged documents or document manipulation. Another witness testified that she has concluded that the social security number Mr. Obama uses is fraudulent; however, her investigatory methods and her sources of information were not properly presented, and she was nevl~rqualified or tendered as an expert in social security fraud, or fraud investigations in g<::neral. Accordingly, the Court cannot make an objective threshold determination of these witnesses' testimony without adequate knowledge of their qualifications. See Knudsen v. Duffee-Freeman. Inc., 95 Ga. App. 872 (1957) (for the testimony of an expert witness to be received, his or her qualifications as such must be first proved). None of the testif}'lingwitnesses provided persuasive testimony. Moreover, the Court finds that none of the written submissions tendered by Plaintiffs have probative value. Given the unsatisfadory evidence presented by the Plaintiffs, the Court concludes that Plaintiffs' claims are not persuasive.

5

n.

Application of the '''Natural Born Citizen" Requirement Plaintiffs allege that President Barack Obama is not a natural born citizen of the

United States and, therefore, is not eligible to run in Georgia's presidential primary election. As indicated supra, the United States Constitution states that "[n]o person
',4

except a natural born Citizen ... shall be eligible for the Office of the President .... U.S. Const. art. II, § 1, cl. 5.

For the purpose of this section's analysis, the following facts are considered: 1) Mr. Obama was born in the United States; 2) Mr. Obama's mother was a citizen of the United States at the time of his birth; and 3) Mr. Obama's father was never a United States citizen. Plaintiffs contend that, because his father was not a U.S. citizen at the time of his birth, Mr. Obama is li;onstitutionallyineligible for the Office of the President of the United States. The Court does not agree. In 2009, the Indialla Court of Appeals ("Indiana Court") addressed facts and issues similar to those befilre this Court. Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009). In Arkcny, the plaintiffs sought to prevent certification of Mr. Obama as an eligible candidate for president because he is not a natural born citizen. fd. at 681. The plaintiffs argued, as the Plaintiffs argue before this Court, that "there's a very clear distinction between a 'citizen of the United States' and a 'natural born Citizen,' and the ditlerence involves having [two] parents of U.S. citizenship, owing no foreign

allegiance," Id. at 685. The Indiana Court rejected the argument that Mr. Obama was

4 The definition of this clause has been the source of much debate. See, e.g., Gordon, Who Can Be President oftlte United States: the Ufl/'(>.mlved nigma, 28 Md. L. Rev. 1 (J 968); Jill A. Pryor, Note, The E Natural-Born Citizen ClaLls(~ Presidential Eligibility: An Approach for Resoh'ing Two Hundred Years and (!rUncertainty, 97 Yale L.J. 88'1 (1988); Christina S. Lohman, Presidential Eligibility: The Meaning orthe Natural-Born Citizen Clause. 36 Gonz. L. Rev. 349 (2000); William T. Han, Beyond Presidential Eligibility: The Natural Born Citizen Clause as a Source o/Birthright Citizenship, 58 Drake L. Rev. 457

(2010).

6

ineligible, stating that children born within the United States are natural born citizens, regardless of the citizenship of their parents. Id. at 688. This Court finds the decision and analysis of Arkeny penmasive. The Indiana Court began its analysis by attempting to ascertain the definition of "natural born citizen" because the Constitution does not define the term. ld. at 685-86;
See Minor v. Happersett, 88 U.S. 162, 167 (1875) ("The Constitution does not, in words,

say who shall be natural born citizens. Resort must be had elsewhere to ascertain that.");
see also United States v. Wong Kim Ark, 169 U.S. 649 (1898) (noting that the only

mention of the term "natura1 born citizen" in the Constitution is in Article II, and the term is not defined in the Constitution). The Indiana Court first explained that the U.S. Supreme Court has read the Fourteenth Amendment and Article that "new citizens may
hi;:

n (natural born citizen provision) in tandem and held

born or they may be created by naturalization." [d. at 685

(citing Minor, 88 U.S. at ].67); See U.S. Const. amend. XIV, § 1. CAll persons born or naturalized in the United ~;,tatesand subject to the jurisdiction thereof, are citizens of the United States .... "). In lvlinor, the Court observed that: At common-law, with the nomenclature of which the framers of the Constitution were J!amiIiar,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. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.
ld. at 167-68. Plaintiffs a::;kthis Court to read the Supreme Court's decision in Minor as

defining natural born citiz'~nsas only "children born in a country of parents who were its

7

citizens." 88 U.S. at 167. However, the Indiana Court explains that Minor did not define the term natural born citizen. In deciding whether a woman was eligible to vote, the
Minor Court merely conclllded that children born in a country of parents who were its

citizens would qualify as natural born, and this Court agrees. The Minor Court left open the issue of whether a child born within the United States of alien parent(s) is a natural born citizen. Next, the Indiana Court looked to United States v. Wong Kim Ark, in which the Supreme Court analyzed t1l1e eaning of the words "citizen of the United States" in the m Fourteenth Amendment and "natural born citizen of the United States" in Article II to determine whether a child born in the United States to parents who, at the time of the child's birth, were subjecti 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 .... " Id. at 686 (citing Wong Kim Ark, 169 U.S. at 653). The Indiana Court determined that the two provisions "must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution." /d. (citing Wong Kim
Ark, 169 U.S. at 654).

The Indiana Court agreed that "[t]he interpretation of the

constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language::of the English common law, and are to be read in the light of its history.'" Id. (citing Wong Kim Ark, 169 U.S. at 655) (internal citation omitted). The
Wong Kim Ark Court exte:nsively examined the common law of England in its decision

and concluded that Wong Kim Ark, who was born in the United States to alien parents,

8

became a citizen ofthe United States at the time of his birth.5 Wong Kim Ark, 169 U.S. at 705.

5

The Wong Kim Ark Court expillined: The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith" or "power," of the King. The principle embraced all pers('us born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual ... and were not restricted to natural-born subjecl<; and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambmsadors, or the children of aiien cnemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdict ion of the King.

169 U.S. at 655. It thus clearly appears that l:y the law of England for the last three centuries, beginning before the settlement of this countlY, and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protec tion, the power, the jurisdiction, of the English Sovereign; and therefore every child born lin England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy in hostile occupation of the phLce where the child was born.
Jd. at 658.

Further:

Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the' parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth. Jd. at 660 (quoting Inglis v. T/"l.lsleeS of Sailors . Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830) (Story, J., concurring». And: The first section of the citizen.' It thus assumes of the constitution was this country at the time place of birth. se<:ond article of the constitution uses the language, 'a natural-born thai citizenship may be acquired by birth. Undoubtedly, this language used in reference to that principle of public law, well understood in of the adoption of the constitution, which referred citizenship to the

ld. at 662 (quoting Finally:

Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting».

All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the con:.mon law, and it is the common law of this country, as well as of

England.
Jd. at 662-63 (quoting United Si'Cltes I'. Rhodes, (1866) (Mr. Justice Swayne»).

9

..............•...

-.--.----- ---------------------------------'------------------

Relying on the language of the Constitution and the historical reviews and analyses of Minor and
W01:lg

Kim Ark, the lndiana Court concluded that

persons born within the borders of the United States are "natural born citizens" for Artick II, Section I purposes, regardless of the citizenship of their parents. Just as a person "born within the British dominions [was] a natural-born British subject" at the time of the framing of the U.S. Constitution, so too were those "born in the allegiance of the United States [] natural-born citizl~ns." 916 N.E.2dat 688. The Indiana Court determined 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.1i

For the purposes cf this analysis, this Court considered that President Barack Obama was born in the United States. Therefore, as discussed in Arkeny, he became a citizen at birth and is a natural born citizen. Accordingly,
CONCLUSION

President Barack Obama is eligible as a candidate for the presidential primary election under a.c.G.A. § 21-2-5(b).

SO ORDERED, February

3rd,

2012.

'\Jk' t~~ c

;,WI MICHAEL M. MALIHI, Judge

~,UvJ~

J

&

This Court recognizes that the lYOllg Kim Ark case was not deciding the meaning of "'natural born citizen" for the purposes of detennininn presidential qualifications; however, this Court finds the Indiana Court's analysis and reliance on these cases to be persuasive. 10

IN THE OFFICE OF THE SECRETARY OF STATE STATE OF GEORGIA
DAVID FARRAR, LEAH LAX, CODY .JUDY, THOMAS MALAREN, I,AU RIE ROTH, Docket Number: OSAH-SECST ATECE-1215136-60- MAUHI Petitioners, Counsel for Petitioners:
v.

Orly Taitz Michael Jablonski

Counsel for Respondent: RARACK ORAMA, Respondent.

DAVID P. WELDON, Petitioner,
v.

Docket Number: OSAH-SECSTATECE-121S137-60- MALIHI Counsel for Petitioners: Counsel for Respondent: Van R. Irion Michael Jablonski

BARACK OBAMA, Respondent.

CARL SWENSSON, Petitioner,
v.

Docket Number: OSAH-SECST ATECE-1216218-60- MALIDI Counsel for Petitioners: Counsel for Respondent:

J. Mark

Hatfield

BARACK OBAMA, Respondent.

Michael Jablonski

KEVIN RICHARD POWEI,L, Petitioner,
v.

Docket Number: OSAH-SECSTA TECE-1216823-60- MAUHI Counsel for Petitioners: Counsel for Respondent:

J. Mark

Hatfield

BARACK OBAl.'\IA, Respondent.

Michael Jablonski

FINAL DECISION!

Petitioners filed cancLidatechallenges pursuant to a.c.G.A. § 21-2-5(b) contending that Respondent docs not meet the State of Georgia's eligibility requirements for his name to be listed on the 2012 Presidential Preference Primary ballot. Judge Michael Malihi, Administrative Law Judge ("ALJ") for the Offict~of State Administrative Hearings, held a hearing on each candidate challenge on January 26, 2012 and entered an initial decision for the above-captioned cases on February 3, 2012. The Secretary of State formally adopts the initial decision of the ALl into this final decision. Therefore, IT IS HEREBY DECIDED THAT the above-captioned challenges are DENIED. SO DECIDED this ~:~ day of Febmary, 2012.

Georgia Secretary of State

lflfv-

I Judge Michael Malihi previously consolidated the above-captioned candidate challenges for the pnrpose of issuing his initial decision. Those candid<ltechallenges remain consolidated tor the purpose of issuing this Final Decision.

CERTIFICATE

OF SERVICE for Petitioner, do hereby Summons and

I, J.
certify Petition

Mark Hatfield,

Attorney

that I have this day served the foregoing For Judicial Review and attachments

thereto upon:

Mr. Michael K. Jablonski Attorney at Law 260 Brighton Road NE Atlanta, Georgia 30309-1523 Honorable Brian P. Kemp Secretary of State state of Georgia 214 State Capitol Atlanta, Georgia 30334 Honorable Michael M. Malihi Administrative Law Judge Office of State Administrative 230 Peachtree Street NW Suite 850 Atlanta, Georgia 30303 by placing addressed

Hear.ings

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 Secretary

and by emailing

same to Mr. same to

at michael.iablonski@comcast.net, Kemp at vr.usso@sos.oa.oov, at kbea,l@osah.ga.oov. 2012.

by emailing

and by emailing

same to

Judge Malihi

This 15th day of February,

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

31502

IN THE' SUPERIOR

COURT OF FULTON COUNTY

STATE OF GEORGIA CARL SWENSSON, Petitioner

FILED IN OfFICE

*
* *
CIVIL ACTION FILE NO. 2012CV211527

DEPUTY CLERK SUPERIOR COURT FULTON COUNTY, GA

lf~~a
-~

V.
BARACK OBAMA,

*
*

Respondent

MOTION FOR EXPEDITED REVIEW OR, ALTERNATIVELY, FOR STAY OF :DECISION OF SECRETARY OF STATE AND FOR POSTPONEMENT OF. PRESIDENTIAL PREFERENCE PRIMARY ELECTION Now comes Petitioner undersigned counsel, Carl Swensson, by and through review

and moves the Court for an expedited appellate proceeding or, in the

of the above-captioned alternative, Secretary

for a E:tay of the Final Decision of the Georgia of the Georgia

of State tlerein and for a postponement Prefere~nce Primary Election,

Presidential Motion,

and in support of this

Petitioner

E:hows to the Court the following:

1.
This action is an appeal of a Final Decision of Georgia Secretary Swensson's Obama, of State Brian P. challenge Kemp denying Petitioner Carl Barack

to the qualifications

of Respondent

a presidenti~ll candidate, of the~ United

to seek and hold the Office of Obama

the President eligible

States, and finding Respondent primary

as a candidate

for the presidential

election.

F:ILAINTIFF'S EXHIBIT

Page -1-

u c..\\

2.

The Georgia scheduled

Pre~sidential Preference

Primary Election

is

to take place on March

6, 2012, only two (2) weeks from

the date of this Motion.

3.
O.C.G.A.

§

21-~:-5(e) guarantees

Petitioner

the right to of

appellate

review of the adverse

decision

of the Secretary

State in this matter. 4. Petitioner's significant Respondent, United afpeal involves, among other issues, a law, i.e. whether or not

issue of constitutional

whose father was a foreign national

and never a

States citizen, meets the "natural born Citizen" requirerr~nt of Article

eligibility United

II,

Section

I, Clause 5 of the

States Constitution.

5.
Unless this COL.rt grants expedited review, or unless of the Secretary this of

Court orders a stay of the Final Decision State and a postponement Primary Election of the Georgia

Presidential

Preference

per.ding a final judgment

of this Court, action is moot Preference Primary

Respondent

will likely claim that Petitioner's of the Georgia Petitioner Presidential

after the holding Election.

Although

would disagree, nevertheless

and does disagree, Petitioner

with any such claim by Respondent,

Page -2-

anticipates

that Respondent

would probably

make such an argument

in an effort to avoid a decision

on the merits of this appeal.

6.
With regard to Petitioner'.s request of this appeal, 6.7 Petitioner for an expedited Superior review

shows that Uniform provides that

Court Rule

("Motions in emergencies.U)

Upon written notice and good cause shown, the assigned judge may shorten or waive the time requirement applicable to emergency motions, except motions for summary judgment, or grant an immediate hearing on any matter requiring such expedited procedure. The motion shall set forth in detail the necessity for such expedited procedure. 7. In connection with Petitioner's alternative request for a

stay of the Final De8ision herein

of the Georgia

Secretary

of State

and for a postponement Primary Election, 21-2-5(e),

of the Georgia Petitioner

Presidential to

Preference a.C.G.A.

shows that pursuant

§

while "[t]he filing of the petition of the Secretary of State[,]

shall ...the

not itself stay the decision reviewing cause court may Jrder Furth2r,

a stay upon appropriate

terms for good to court

shown."

a.C.G.A.

§

5-3-28(b),

applicable

appeals may

to superior

8ourt, provides

that "[t]he superior

issue such orders and writs as may be necessary on appeal.u

in aid of its

jurisdiction

8.
Petitioner submits that, in order that Petitioner of State's Final Decision may secure to which Page -3-

the review of the Se8retary

Petitioner significant Petitioner's

is entit ... by Georgia ed issue of constitutional action may be finally

law, and in order that the interpretation and decisively raised by adjudicated, appeal

this Court should g]~ant expedited

review of the instant

or, in the al ternat:.ve, the Court should grant a stay of the Final Decision postponement Election of the Georgia Secretary of State herein Preference and a

of the Georgia

Presidential

Primary

currently

~;cheduled for March 6, 2012. respectfully requests herein.

WHEREFORE,

Peti.tioner Carl Swensson

that this Court grarlt the relief requested by Petitioner This 21st day of February, 2012. & HATFIELD, P.C.

HATFIELD

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

31502

Page -4-

CERTIFICATE

OF SERVICE

I, J.
certify

Mark Hatfield,

Attorney

for Petitioner,

do hereby Motion For of

that I have this day served the foregoing Review or, Alternatively,

Expedited Secretary Preference

For Stay of Decision of Presidential

of State 2md For Postponement Primary E:lection upon:

Michael K. Jablonski Attorney at Law 260 Brighton Road NE Atlanta, Georgia 30309-1523
Mr.

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 envelope with sufficient delivery, States Mail in a properly affixed thereto in

postage

order to insure proper Jablonski

and by emailing

same to Mr. same

at michael.lablonski@comcast.net Kemp at vrusso@sos.ga.gov. 2012.

and by emailing

to Secretary

This 21st day of February,

HATFIELD

& HATFIELD,

P.C.

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

31502

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

CARL SWENSSON, Petitioner, vs. BARACKOBAMA Respondent MOTION Ta DISMISS Respondent moves this Court for an order dismissing the petition as follows: 1. This Court lacks jurisdiction over the subject matter. a.c.G.A. § 9-1112(b)(1). 2. Failure of service of process. a.c.G.A. § 9-11-12(b)(5). 3. Failure to state a claim upon"which relief can be granted. O.C.G.A. § 911-12(b)(6). Argument in favor of the motion to dismiss is set forth in the accompanying brief. Respectfully submitt,ed, This 27th day of February, 2012. Civil Action File Number 2012 CV 211527

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

PLAINTIFF'S EXHIBIT
1/

'0'"

CERTIFICATE OF SERVICE I hereby certify that
T

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 mhatfieldcmvvavxcable.com.

This 27th day of February,

:;!

012.

MICHAEL JABLONSKI Georgia State Bar Number 3;85850 2221- D Peachtree Road NE Atlanta, Georgia 30309 404-290-2977 michael.jablonski (a:l comcast: net

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

CARL SWENSSON, Petitioner, vs. BARACKOBAMA Respondent Civil Action File Number 2012 CV 211527

Brief in tiupport of Respondent's Motion to Dismiss

The appeal from the Secretary of State's decision finding that President Obama is qualified to appear on the Presidential Preference Primary ballot is one in a long line of persistent challenges filed across the country since 2008. Not a single challenge has ever been upheld.1

Georgia cases: Rhode~; 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 aI, 4:2009cv00082, 2009 WL 2163535 (M.D.Ga. July 16, 2008). Federal cases: Allen v. Soetoro, 4:09-cv-00373, 2011 WL 2130589, (D. Ariz. May, 2010); In re: American Grand Jury, 3:09mco0215(USDC Tenn., 2009); Keyes v. Obama, 8:09-cv,;,00082, 2009 WL 3861788, (U.S.D.C.D. Cal. Oct. 29, 2009), appeal pending, No. 10-55084 (9th Cir., 2011); Berg v. Obama et al, 574 F.Supp.2d 509 (E.D.Pa. 2008), aff'd, 586 F.3rd 234 (3rd Cir. 2009), Cert. denied, 129 S. Ct. 1030 (2009); Berg v. Obama, 656 F. Supp.2d. 10'7(D.D.C. Cir. 2009); Beverly v. Federal Elections Commission, 09-15562 (E.D. Cal., 2008), aff'd 09-15562 (9th Cir., 2009), cert. denied, 130 S. Ct. 1732 (2010); Bowhall v. Obama, 2:10Cvo0609, 2010 WL 4932747, (M.D. Ala. November 30,2010); The Church of Jesus Christ Christian/Aryan Nations of Missouri et al v. Obama et ai, 6:08cW)3405, 2011 WL 4916569 (W.D. Mo. Oct. 17, 2011); Cohen v. Obama, 1:08cv02150, 2008 WL 5191864 (D.D.C., Dec. 11,2008), aff'd, 2009 WL 2870668 (D.C. Cir. 2008); Cook v. Good et al, 4:2009cv00082, 2009 WL 2163535, (M.D. Ga. July 16,2008); Cook v. Simtech" 8:2009cV01382 (M.D. Fla., 2009); Craig v.

1 See,

U.S., 5:09-cv-00343 (W.D, Okla., 2009), cert. denied, 130 S. Ct. 141 (2009); Craig v. U.S., 5:09-cv-01345-c (W.D. Okla., 2010); Dawson v. abama, 2:08cv02754, 2009 WL 532617 (KD. Cal. March 2:12009); Ealey v. Sarah abama, 4:08-mc-00504 (S.D.Tex., 2008); Essek v. abama, oB-379-GFVf (E.D. Ky., 2008); Hamblin v. abama, 2:09cV00410, 2009 WL 2513986 (D. Ariz. Aug. 14, 2009); Hamrick v. Fukino, 1:08-cv00544,2009 WL 1404535 (Haw., May 20,2009); Herbert v. abama, 3:08-cv-01164HES-TEM (M.D. Fla., 2008), cert. denied, 130 S. Ct. 562 (2009); Herbert v. US, 3:08cv-00634- TJC-MCR (M.D.Fla., 2008); Herbert v. US, 3:08cv01201, 2009 WL 129585, (S.D.Cal., Jan. 15,2009); Hollander v. McCain, 566 F. Supp.2d 63 (D.N.H. 2008); Hollister v. Soetoro, 601 F. Supp.2d 179 (D.D.C. Cir. 2009), cert. denied, 131 S. Ct. 1017 (2011); Hunter v. U.S. Supreme Court, 2:08cv00232, 2009 WL 111683, (N.D.Tex., Jan. 16,2009), appeal dismissed, No. 09-10246, No. 10-10009, No. 10-100064 (5th Cir., 2009); Jones v. abama, 2:10-CV-OI075 (C.D. Cal., 2010); Judy v. McCain, 2:08cv01162 (USDC Nev., 2008); Kerchner v. abama, 612 F.3d 204 (D.N.J. 2010), cert. denied, 131 S. Ct. 663 (2010); Liberty Legal Foundation v. DNC, CH-11-1757 (D Ariz., 2011); Mackay v. abama, 2:11-CV-'05458-JP (KD. Pa., 2011), voluntarily dismissed, No. 113862 (USDC Pa., 2011); McLanahan v. abama, 2:11-cv-00374-EFS (D.Was., 2011); Morrow v. Barak Humane abama, 1:08-cV-22345 (S.D. Fla., 2008); Neely v. abama, 2:08-cV-15243 (E.D.MI., 20'08); Patriot's Heart Network v. Soetoro, 1:09-mc-00442RCL (D.D.C., 2009); In Re Paul Andrew Mitchell, 2:08-cv-04083 (E.D. PA, 2008),affd 304 Fed. Appx 113, 2008 WL 5381436 (3rd Cir., 2008), mandamus denied, No. 084443 (3d Cir., 2008); Purpura v. Sebelius, 3:10-CV-04814, 2011 WL 1547768, (D.N.J. Apr. 21,2011); Rhodes v. Gotes, 5:09-cv-00703-XR (W.D.Tex., 2009); Rhodes v. MacDonald, 670 F. SUpp.26. 1363 (M.D. Ga. 2009), offd, 2010 WL 892848 ( 11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009); Robinson v. Bowen, 567 F.SUpp.2d 1144 (N.D.Cal. 2(08); Roy v. Fed. Election, 2:08cvOI519, 2008 WL 4921263, (W.D. Wa. Nov. 14,2008); Stamper v. US, 1:08 CV 2593,2008 WL 4838073 (N.D.OH. 2008); Strunk v. Patterson, 1:08cv04289 (E.D.N.Y., 2008), appeal dismissed No. 085422 (2d Cir. Nov. 14,2008:); Strunk v. U.S. Dept. of State, 693 F.SUpp.2d 112 (D.D.C. Cir. 2010), mandamus denied, No. 09-5322 (D.D.C., 2009), appeal dismissed, No. 105092, (DC Cir., 2010); Super American Grand Jury, 1:09-mc-00346-RCL (D.D.C., 2009) ; Taitz v. abama, 707' F.Supp.2d 1 (D.D.C. Cir. 2010), appeal pending, No. 115304 (DC Cir., Oct. 31, 2011); Taitz v. Astrue, 1:11-CV-00402, 2011 WL 3805741, (D.D.C. Aug. 30, 2011); Taitz v. Astrue, 1:11-mC-00158 (D.Haw., 2011); Taitz v. Ruemmier, 1:11CV-01421(D.D.C., 2011); Thomas v. Hosemann, 1:08mco0280 (D. Haw., 2008); Thomas v. Hosemann, 2:08,,,cv-00241-KS-MTP (SD Miss., 2008). State cases: Ankeny v. Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) Affd, No. 49A020904-CV-353 (Ind. App. Court); Brockhausen v. Andrade, No. 08-1001-C365 (Tex. State Court); Broe v. Reed, 82473-8 (Was. State Supreme Court); Connerat v. Browning, 999 So. 2d 644 (Fla. Dist. Ct. App. 2008); Connerat v. abama, No. 09003103SC (Fla. State Comt); Connerat v. abama, No. 09005522SC (Fla. State Court); Constitution Party v" Lingle, No. 29743, 2008 WL 5125984 (Haw. Dec. 5, 2008); Corbett v. Bowen, No. 30-2008-00114112-CU-FR_CJC, (Cal. Superior Court, 2008); Craig v. Oklahoma, ]\iA-I09808 (Okla. Supreme Court); Donofrio v. Wells, No. AN-I053-08T2 (NJ. Nov. 03, 2008), Cert. denied, 129 S. Ct. 752 (2008); Fitzpatrick v.

An effort to harass the President continues with qualification challenges filed across the country and in Georgia. Challengers ignore procedural and evidentiary requirements because their claims are without merit, based on fantasy, and offered in pursuit of a political agenda. See, for example, Rhodes v. MacDonald, 670 F. Supp.2d 1363,1364 (M.D. Ga. 2009), affd, 2010 WL 892848 (11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (20 09) ("When a lawyer uses the courts as a platform for political agenda disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to practice law.") Obama, no docket number I:NCState Court); Greenberg v. Brunner, No. 2008cV1024 (Ohio State Court, 2008); III re John McCain's Ineligibility to be on Presidential Primary Ballot in Pa, 944 }1.. 2d 75 (Pa. 2008); Justice v. Fuddy, 253 P.3d 665 (Haw. 2011); Keyes v. Bowen, 189 Cal. App. 4th 647 (Cal. Ct. App. 2010) Cert. denied, 132 S. Ct. 99 (2011); US v. LTC Terrence L. Lakin, MCAT-JA-SC; Liberty Legal Foundation v. DNC, CH-11-1757 (Tenn. St~::teCourt); Lightfoot v. Bowen, No. 168690 (Cal. Supreme Court, 2008), Cert. denied, 555 U.S. 1151(2009); Marquis v. Reed, No. 08-2-34955-1 (Was. State Court, 2008); ]l/rartin v. Lingle, No. 29414, 2008 WL 4684786, (Haw. Oct. 22,2008); Martin v. Lingle;: No. ICC08-1-002147, 2009 WL 1669050, (Haw. Jun. 9, 2009), Appeal Dismissed, 2009 WL 2372096 (Haw. Aug. 3, 2009); Martin v. Bennett, No. 1CC10-1-000969 (Haw. State Court); Meroni et al v. McHenry County Grand Jury Foreman et al, No. 09mr399 (Ill. State Court, 2009); Neal v. Brunner, No. 2008cv72726 (Ohio State Court, 2008); Patriot's Heart Media Network v. Illinois Board of Elections, No. 10Hoo0605 (Ill. State Court); Schneller v. Cortes, 199 MM 2008 (Pa. Supreme Court, 2009), cert. denied, 129 S. Ct. 2830 (2009); Sorsensen v. Riley, cv-2008-1906 (Ala. State Court, 2008); Spuck v. Sec. of State, 2008 CVl116(Ohio State Court, 2008); Stumpo v. Granholm, No. 08-140-MM (Mich. Dist. Ct. (30th) Mar. 31, 2009), appeal dismissed, No. 291681, (Mich. App. Ct., Jun. 3, 2009); Stunk v. Patterson, 029641/2008 (N.Y. State Court, 2008); Strunk v. Patterson, 029642/2008 (N.Y. State Court, 2008); SuUivan v. Sec. of State, 08CV1076(N.C. State Court, 2008); Sullivan v. Marshall, 08CVS-021393 (N.C. State Court, 2008); Taitz v. Fuddy, 1CCll-1001731 (Haw. State Court); ']'erry v. Handel, 08CV158774S(Superior Court Fulton County, 2008), appeal dismi'ssed, No. S09Do284 (Ga. Supreme Court), reconsideration denied, No. S09A1373; Wrotnowski v. Bysiewicz, SC 18264 (Conn. Supreme Court, 2008).

President Obama was a United States citizen from the moment of his birth in Hawaii. Since he held citizenship from birth, all Constitutional qualifications have been met. Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. App., 2009); see,

United States v. Marguet-Pillado, 648 F.3d 1001,1006

(9th

Cir., 2011). There is no

basis to question the Presid.ent's citizenship or qualifications to hold office. Specially appearing before this Court, respondent show that petitioner's actions should be dismissed as they have been in numerous cases for lack of jurisdiction over the subject matter, failure of service of process, and failure to state a claim upon which relief can be granted. O.C.G.A. § 9-11-12(b)(1), (5), and (6). I. LACK OF SUBJECT MATTER JURISDICTION A. THE STATE OF GEORGIA MAY NOT EXERCISE JURISDICTION OVER A POLITICAL PARTY'S CHOICE OF NAMES TO INCLUDE IN THE PRESIDENTIAL PREFERENCE PRIMARY. The Democratic Party of Georgia, a political party as defined by O.C.G.A. § 21-22(25), participates in the Georgia Presidential Preference Primary "so that electors may express their preference for one person to be the candidate for nomination ... for the office of President ofthe United States." O.C.G.A. § 21-2-191. No one is elected to any office, nor is anyone nominated to run for any office, as a result of the Presidential Preference Primary. Nomimltion of a candidate for the office of President will occur at the national convention in Charlotte, NC during the week of September 3, 2012. 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, 15:30-1(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 it::;primary ballot. The right to associate not only contemplates the ability to exclude but, necessarily, who to include. Apportionment of delegates as a result of preference primary results constitutes an internal party matter. The State of Georgia may not interfere with "the traditionally recognized autonomy ofthe political party's internal decision-making." Belluso v. Poythress, 485 F.Supp. 904, 912 (N.D. Ga., 1980); Duke v. Cleland, 954 F.2d 1526 (11th Cir., 1992).

B. THE QUALIFICATIONS CHALLENGE STATUTE DOES NOT APPLY TO THE PRESIDENTIAL PREFERENCE PRIMARY.
a.C.G.A. § 21-2-5 does not apply to the Presidential Preference Primary. The

preference primary is not an election: by its terms, the preference primary is simply an opportunity for electors "to express their preference for one person to be a candidate for nomination." a.c.G.A. § 21-2-191. The election code defines "election" as "any general or special election and shall not include a primary or special primary unless the context in which the term is used clearly requires clearly requires that a primary or special primary is included. " O.C.G.A. § 21-:;!.-2(5).Neither the preference statute nor the definition reference the Presidential Preference Primary. Nothing in the context of a.c.G.A. § 212-5 "clearly requires" applicability to the preference primary."

O.C.G.A. § 21-2-S applies when a candidate is "certified by the state executive committee of a political paJlty or ... files a notice of candidacy." O.C.G.A. § 21-2-s(a). Neither occurred here. (CeJltification of candidates by a party executive committee refers to the qualification procedure in O.c.G.A. § 21-2-1S4(a) and the payment of qualifying fees, neither of which apply to preference primaries.) No fees may be charged for listing a name on the preference ballot. O.C.G.A. § 21-2-198. There is no qualifying nor does a political party file a certification of its qualified candidates, as it would in an election. See, O.C.G.A. § 21-2-154. The state executive committee simply lists names that it wishes to have on the preference primary ballot. O.C.G.A. § 21-2-193. II. SERVICE OF SUIHMONS AND PETITION FOR REVIEW UPON AN ATTORNEY REPRESENTING A PARTY IS INSUFFICIENT The return of service filed with the Court shows that service of the summons and complaint was made by mailing to respondent's attorney. Petitioner did not seek a waiver of personal service a~;: uthorized by O.C.G.A. § 9-11-4(d) nor did it attempt a personal service using the methods specified by a.c.G.A. § 9-11-4(e) or 4(f). "Where there is no process and no waiver of process, no valid suit arises." State Hwy. Dept. v. Noble, 220 Ga. 410, 414,139 S.E.2d 318 (1964). III. THE PETITION F'OR REVIEW DOES NOT STATE CLAIMS AGAINST THE PRESIDENT The proper party resp ondent when challenging a qualification decision made by the Secretary of State is the ~;I,ecretary State. In order to grant the relief sought by the of petitioner the Secretary of State needs to be before the court. He is not. See, for example, Handel v. Powell, 284 Ga.
SbO

(2008), in which the only parties in the appeal were the

Secretary of State and the challenger of the Secretary's decision.

The relief sought by the petitioner is relief from a decision of the Secretary of State. In paragraphs 13 and 15 of the review petition petitioner seeks to stay the action of the Secretary of Stay. The petition does not seek any relief against the President, but only against the Secretary. [n order to grant relief, the Civil Practice Act requires the issuance of a summons signed by the clerk of court in order for the court to exercise power granting relief. The issuance of process signed by the clerk is a necessary part of acquisition of jurisdiction. OCGA § 9-11-8 (a) (2) (A); Schafer v. Wachovia Bank of Georgia, 248 Ga.App. 466, 546 S.E.2d 846 (2001). No summons commands appearance by the Secretary of State in this matter. The lack of personal jurisdiction over the Secretary of State deprives this Court of jurisdiction to grant relief. 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). Jurisdiction over the Secretary of State must be established before the court can enter any ruling binding a party slllchas the Secretary of State or the ruling is declared null and void. See Estate ofMar,./orie C. Thurman v. Dodaro, 169 Ga.App. 531, 532(1), 313 S.E.2d 722 (1984). 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).

The relief sought by the petition is directed against the Secretary of State, not the President. The complaint does not state a claim against the President.

IV. CONCLUSION Respondent specially appears in this Court to show that the petition for review should be dismissed.

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. jabl onski@comcas:.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 servi.ce pursuant to O.C.G.A. § 9-11-5(e) using the email address mhatfield@J\vayxcable.com. This 27th day of February, 2012.

MICHAEL JABLONSKI Georgia State Bar Number ~;:85850 2221- D Peachtree Road NE Atlanta, Georgia 30309 404-290-2977 michael.ja blonski(cDcomcast.net

IN THE SUPERIOR

COURT OF FULTON COUNTY

STATE OF GEORGIA CARL SWENSSON, Petitioner

* * *
CIVIL ACTION

v.
BARACK OBAMA,

I
'

II MAR 05;-J
.• " ..

! FILEtDN

OFFICE

DEPUTY CLERK SIJPERIOR COURT .. FULTON COUNTY, GA ,

FILE NO. 2012CV211527~"~'"

ft!S

.,

* *
PETITIONER'S RESPONSE TO RE:SPONDENT'S MOTION TO DISMISS

Respondent

Now comes Petit.ioner Carl Swensson, undersigned Motion counsel, and responds

by and through Barack Obama's

to Respondent

to Dismiss herein as follows: PRELIMINARY STATEMENT initially claims that

Respondent the instant country

Obarna's Motion

to Dismiss

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

since 2008 i.n "[a]n effort to harass"

Respondent including

further claims that those individuals, PetitioneI' herein, bringing challenges

qualifications requirements fantasy,

for elffice "ignore procedural

and evidentiary

beCaUSE! their claims are without merit, based on of a political agenda." Finally, from the

and offereel in pursuit

Respondent moment

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

of his birth in Hawaii"

Constitutional

(sic; qualifications

A review of

-

PLAINlhFF'S
EXHI1BIT
J./ .-

-

Page -1-

I:::.

''1\

the record in this action, however, assertions are completely misguided.

reveals

that Respondent's

Petitioner Respondent United

first notes that no individual,

including of the of the

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

States.

Presidency

is expect:ed and required to comply with the provisions including the eligibility requirements for

of the Constitution, the presidency, States thereof.

and the laws of the United

States and the Several

With the foregcing 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 Petitioner's

and his lawyer tried, unsuccessfully, challen:Je dismissed. Respondent requiring

was then legally

served with a Notice to Produce, and to bring certain documents The Respondent did not object.

him to appear at trial with him.

and items of evidence

When the time for trial was imminent, lawyer wrote a letter 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. The day of trial, when Respondent public schedule,

to

had no events

or duties on his official Secretary

and after the

of State llad warned

him that his failure to appear and his lawyer

would be at his own peril, nevertheless Petitioner's

the Respondent

failed to appear valid Notice no evidence

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

to Produce.

only presented office,

of his own as to his eligibility significant entitled. and failings of pieces

but he faile,d to produce was legally

of evidence

to which Petitioner

In view of the foregoing Respondent disregard appears and his lawyer,

misconduct

and considering

Respondent's

total it

of the la~'s of this State and the judiciary

thereof,

that it is F:espondent, and not Petitioner, and evidentiary agenda,H requirements,H

who "ignore [s] of a

procedural political

who is "in pursuit

and whose

factual assertions

- which he fails

to support with any evidence Petitioner, availing himself

- are "based on fantasy.H anyone, is simply

far from seeking to "harassH of lawful procedures

under Georgia

law in order

to properly whether

raise and have finally determined

the issue of and never

Respondent,

Nhose father was a foreign national is a "natural born CitizenH Constitution

a United States under Article United States.

citizen,

eligible of the

II of:he

for the Presidency contends

In tJlat regard,

Petitioner

that the

Page -3-

"natural prevent national command

born Citizl:m" requirement

of Article

II was intended and dual

to

anyone born with dual national allegiance:3 from holding of this nation's military of national

citizenship

the presidency forces.

and the ultimate

It is thus nothing

less than a matter and construction

security that the proper meaning born Citizen" requirement, as

of the "natural

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

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

162 (~_875), be conclusively

SUBJECT-M1!~TTER JURISDICTION

Seeking dismisE:al on the basis of a lack of subject-matter jurisdiction Amendment party in thiE: Court, Respondent first argues that First party give the on its

associational

rights of a political

the exclusive

right to determine Primary ballot.

whom to include

Presidential contends

Preference

While Respondent rights of a party are

that First Amendment

associational

"most often litigated" to permit

in the situation ballot

in which a party refuses Party of

a name on a primary

(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 the unchecked ballot. right to require however,

is also true" in that the party has certain names on its primary cites no authority for the latter are

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 its ability statutory placed

a state government or

to requj.re that candidates

meet constitutional

eligibilit:y requirements

for office in order to be

on the state ballot.

O.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 elector

and the Secretary whether

of State is is gives an

empowerec: to determine to seek and hold office. challenging

the candidate

O.C.G.A.

§

21-2-5(e)

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.

Given the to the

right to run its own elections, rights of the Respondent's

nothing pertaining political

associational

party deprives

this Court of subject-matter Respondent the Georgia

jurisdiction however,

in this matter.

also contends,

that O.C.G.A.

§

21-2-5,

qualifications Preference

challenge

statute,

does not apply to

the Presidential

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

does not have subject-matter Respondent O.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 candidate;3 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,

().C.G.A.

§

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

the qualifications type of election. Primary

e)f "any candidate,"

(:ontestants in a Presidential as "candidates." O.C.G.A.

are designated

§

21-2-193. must be party"

Respondent "certified or must

nev(~rtheless argues that a "candidate" committee

by the state executive

of a political

submit "a notice

of candidacy,"

see O.C.G.A.

§

21-2-5(a),

and that neither Respondent. challenge

of such conditions

have taken place as to however, that a

O.C.G.l~.

§

21-2-5(b)

provides,

of the qU~llifications 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 hi~; nomination

prior to the general

addition~llly submits that "certified" are not specifically

and "notice of

defined terms in the Georgia

Page -6-

Election

Code, and one could argue that the list of Presidential Primary :andidates submitted by Respondent's 21-2-193 constituted a political

Preference

party pursuant "certification"

to O.C.G.A.

§

or a. "notice of candidacy." i': is apparent that the Georgia qualifications

Accordingly, challenge Preference jurisdiction
II.

statute dc)es, in fact, apply to the Presidential Primary ,md that this Court does have subj ect-matter herein,
OlIr

SERVICE

SUMMONS

Respondent

als() seeks dismissal

for the reason that "service to

of the summons and complaint [R]espondent's service attoJ~ney."

was made by mailing

Respondent

claims that personal for a viable suit.

or a waiver

thereof was required

The case of DOl,lglas Asphalt Commission, controlling. appeal

Co. v. Georqia

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

of an admini~;trative decision personal

tribunal,

service of the petition

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

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

the juri.sdiction 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."

O.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 s'imilar motions, orders, and proceedinqs may be made by the attorney or party filing the notice or paper, in person or by mail, and proof thereof shown by acknowledsrment of the attorney or party served, or by certificate of the attorney, party, or other person perfecting service.

Therefore, Respondent accordance however,

in t:he instant case, service of the Petition upon same to his attorney Petitioner was in

Obama by mailing with Georgia law.

notes in passing,

that even j_f the service by mail were for any reason not proper, C).C.G.A.

considered

§

5-3-21(b)

states in pertinent

part

that "[f]ailure dismissal, enter

to Tlerfect service on any party shall not work and

but the fluperior court shall grant continuances to permit

such other orciers as may be necessary determination of the appeal."

a just and

expeditious III.

STATEMENT OF CLAIM AGAINST RESPOND1!:NT fin2llly requests dismissal because "[t]he proper of State

Respondent

party when challenging is the Secretary

a decision made by the Secretary Respondent

of State."

states such contention

Page -8-

with no citation Respondent

of authority

whatsoever.

Nevertheless, action does not

goes on ~o claim that Petitioner's Respondent,

seek any relief against Secretary 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

"[n]o summons commands this matter." Beginning legal analysis Petitioner's decision action. O.C.G.A. service with,the

appearance

by the Secretary

latter issue of "summons," O.C.G.A.

Respondent's

is flawed.

§

21-2-5(e)

makes plain that

Petition

For Judicial Review

is an appeal from the civil

of the Sec,:~etaryof State; it is not an original The only n:!ference to service of the Petition in

§

21-2-5(ei

states that "[a]s soon as possible

after

of the peti1:ion, the Secretary or a certified Nowhere

of State shall transmit

the original reviewing

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

court."

or even mentioned. Likewise, O.C.(;.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 statute is "summons" required

or even mentioned. Furthermore, in Doualas As?halt, 263 Ga. App. at 711-712, by mail, with no of the superior

the state agency was served with the petition summons at all. The Court affirmed

the judgment

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 roll;; herein, proper State court. brought

of State is not a of

party to thi:3 petition. is essentially

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

in a quasi-judicial

The challen:je to Respondent's by the Secretary

qualifications

of State, but by Petitioner.

Petitioner (at of

and Respondent

were the named parties below, the challenge;

and Respondent the Secretary

least up until trial) defended State with

did not defend. the challenge an interest

in any manner.

The entity not

at stake in this challenge

was Respondent,

the Secretary

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

Under these circumstances, dispute agency). Respondent, State. between Petitioner

and the Secretary

The challenge

was a dispute between adjudicated

Petitioner

and sam';; was merely Petition

by the Secretary

The instant

does therefore

state a claim against

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

of the Secretary II

a finding that Respondent born Citizen"

does not meet the Article for the presidency,

"natural

requirement

a removal

of Respondent's

name from the ballot,

an order adjudging

Page -10-

Respondent comply

in contempt

of court for his deliberate Notice

failure to

with Petitioler's

to Produce in the administrative a postponement of the

proceedings; Presidential

and conditionally, Preference

Primary Election.

Should the requested granted

relief be granted b:{ this Court, such would be primarily in the form of an order reversing Secretary of State \~ith 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 A})peals or Supreme Court would reverse a superior simply Court's court jud~rrent with direction. The Secretary of State this

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

applicable considered

statutes a party.

require the Secretary

of State to be named or

Petitioner Handel

further notes that Respondent's

citation as the

to

v. Powell, 2U4 Ga. 550

(2008) is misplaced, brought

Secretary candidate's elector,

of State there personally qualifications.

the challenge

to a

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 ~rerethe

only two

challenge

and the appeal to superior

court. that even if the

Petitioner Secretary

agai.n notes in passing,

however,

of State v,'ere for any reason deemed to be a necessary

Page -11-

party

to this appeal who had not been properly states in pertinent

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

§

5-3-21(b) service court

part that "[f]ailure

on any part:! shall not work dismissal,

but the superior

shall grant continuances to pennit

and enter such other orders as may determination of

be necessary the appeal."

a just and expeditious

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,

201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

3~.502

Page -12-

CERTIFICATE

OF SERVICE

I, J. Mark Hatfield, Attorney for Petitioner, do hereby
certify Response that I have this day served the foregoing to Respondl~nt's Motion to Dismiss upon:
Mr. Michael K. Jablonski Attorney at Law 2221-0 Peachtree Road NE Atlanta, Georgia 30309

Petitioner's

Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334 by placing addressed a copy oj~ same in the United States Mail in a properly envelope ~lith sufficient postage affixed thereto in

order to insure prol)er delivery, Jablonski

and by emailing

same to Mr. same

at michael.iablonski@comcast.net Kemp at vrusso@sos.qa.qov. 2012. HATFIELD

and by emailing

to Secretary

This 2nd day of March,

& HATFIELD,

P.C.

"\

J~Mark Hatfie Attlorney for P~t Georgia Bar No. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820

31502

Mark Hatfield
From: Sent: To: Cc: Subject: Mark Hatfield Umarkhatfield@yahoo.com] Friday, March 02, 20126:37 AM elizabeth.baum@fultoncountyga.gov michael.jablonski@c:omcast.net;vrusso@sos.ga.gov
** Court Filing ** Sw:msson v. Obama I Fulton Superior CAFN: 2012CV211527

Attachments: swenssonc1res.pdf

Please see attached Petitioner's Response to Respondent's Motion to Dismiss. As per the Court's permission, please accept this Response as filed with the Court today. I am forwarding the original to the Clerk for filing by UPS overnight mail to arrive Monday.
Hatfield, Esq. Hatfield & Hatfield, P.C. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820 (912) 283-3819 Fax mhatfield@wayxcable.com CONFIDENTIALITY NOTICE: Thil:i e-mail transmission and the attachments accompanying it contain information from the law I)ffice of Hatfield & Hatfield, P.C. which is protected by the attorney-client communication pr ivilege or the work product privilege. The information is intended only for the use of the irlltended recipient. If you are not the intended recipient, be aware that any disclosure, copying, dist ribution, or use of the contents of this transmission is prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail and then destroy all copies of the transmission.

J. Mark

3/2/2012

Mark Hatfield
From~
Sent: To:
Baum, Elizabeth [Elizabeth.Baum@fultoncountyga.gov] Friday, March 02, 20~128:30 AM mhatfield@wayxcable.com; codyjudy@hotmail.com; michael.jablonski@comcast.net; Vincent; David Farrar; van@libertylegalfoundation.org; cale@sos.ga.gov White, Connie RE: Farrar, et al. v. Obama, et a!.: 2012CV211398; Welden v. Obama: 2012CV211537, v. Obama: 2012CV211527, Powell v. Obama: 2012CV211528 Swensson Russo,

Cc:
Subject:

Importance: High

Counsel/Parties: The Court is in receipt of the courtesy copies of your Responses to Respondent Barack Obama's Motion to Dismiss. The Court will consider same in ruling on Respondent's Motion to Dismiss. The Court intends to issue that ruling today. Again, please note that the Order will be entered before your responses are officially filed of record with the Clerk of Court. I assume all responses \-villbe promptly mailed or delivered to the Clerk for filing purposes. Thank you for submitting these Responses to us within the timeframe articulated doing so by email as requested .. and for

Elizabeth Baum Staff Attorney to the Honorable Cynthia D. Wright
Chief Judge, Superior Court of Fulton County 136 Pryor Street, SW, Suite C927 Atlanta, GA 30303 Phone: (404) 613-4187 Fax: (404) 893-6610 elizabeth.balUn0~fultoncountyga go\"

From: Baum, Elizabeth Sent: Thursday, March 01, 2012 10:32 AM To: 'mhatfield@wayxcable.com'; codyjudy@hotmail.com; michael.jablonski@comcast.net; Russo, Vincent; David Farrar; van@libertyle:galfoundation.org; cale@sos.ga.gov Subject: RE: Farrar, et al. v. Obama, et al.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson v. Obama: 2012CV21152/, Powell v. Obama: 2012CV211528

Importance: High In light of these circumstances, the Court will consider a copy of your response submitted by email or fax. Please submit it by email (even if you fax it, as well) as, occasionally, faxes do not go through, and I want to ensure we receive it. You may send your original response to the Clerk tomorrow with the understanding that the Court may issue its ruling on the Motion to Dismiss before your original response is actually filed with the Clerk. All parties/counsel may proceed in this manner.

3/2/2012

Thank you,

Elizabeth Baum
Staff Attorney to the Honorable Cynthia D. Wright Chief Judge, Superior Court of Fulton County 1:36 Pryor Street, SW, Suite C9~i!7 Atlanta, GA 30303 Phone: (404) 613-4<187 Fax: (404) 893-6610 el zabeth. ba um(a!flll tonco IIn ty ga. g'o\'

i

J. Mark Hatfield [mailto:mha!tfield@wavxcable.com] Thursday, March 01, 2012 10:25 AM To: Baum, Elizabeth; codviudy@ho'imail.com; michael.iablonski@comcast.net; Russo, Vincent; David Farrar; van@libertvleqalfoundation.org; cal'I~@sos.ga .qOV Subject: Re: Farrar, et al. v. Obama, et al.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson v. Obama: 2012CV211527, Powell v. Obama: 2012CV211528
From:

Sent:

Ms. Baum, Would the Court please accept my responses (for Plaintiffs Swensson and Powell) as filed with the Court by tomorrow's deadline by email or fax, with a hard copy to be delivered to the Clerk thereafter? The reason for this request is that I am leaving Atlanta this morning to drive home to Waycross, a four hour drive. It would not be possible for me to get back to my law office in Waycross, complete work on my responses, and get my responses to UPS in time for overnight delivery. Thus, I would respectfully reque~;:tthat the Court accept my responses for Plaintiffs Swensson and Powell as filed with the Court by email (or fax) with the hard copy being delivered to the Clerk after tomorrow's deadline. I appreciate the Court's consideration of this request. J. Mark Hatfield "Sent from my Verizon \Vireless BlackBerry" From: "Baum, Elizabeth" <Elizabeth.Baum@fultoncountyga.gov> Date: Thu, 1 Mar 201209:31 :37 -0500 To: codvi udv@,hotmail.com<codlyiudy(iV,hotmail.com>; michael. iab lonski(mcomcast.net<Jnichael. iablonski(cikomcast.net>; Russo, Vincent<vrussormsos.ga. gOY>;David Farrar<david.is.farrar(a;gmail.com>; m hatfi e ld(a)wayxcab Ie.com <mhal:tleld(Zv,wayxcab Ie.com>; van@libefty legalloundation.org< van(cl)libertvlegalfo undation.org>; cale(c~sos.ga. gov<cale(a;sos. ga. go v> Subject: Farrar, et al. v. Obama, I~tal.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson v. Obama: 20l2CV2l1527, Powe:l1v. Obama: 2012CV211528 Respondent Barack Obama filed a Motion to Dismiss in each of the above matters on February 27,

3/2/2012

rae;c

J

VI

J

2012. If you wish to file a response to the Motion to Dismiss, Counsel/Parties are hereby given until tomorrow morning, Fridav, March, 2, 2012 at 9;30 a.m. to do so. The Court is shortening the time period for response due to the time-sensitive nature of certain of your allegations. The Court will issue its ruling on the Motion to Dismiss as soon as possible. Thank you, Elizabeth Baum Staff Attorney to the Honorable Cynthia D. Wright
Chief Judge, Superior Court of Fulton County 1036 Pryor Street, SW, Suite C9~n Atlanta, GA 03003003 Phone: (404) 6103-4187 Fax: (404) 8903-6610 elizabeth. ba um(atfultoneo un tyga. gov

3/2/2012

Michael Jablonski
Attorney-at-law
260 Brighton Road, NE Atlanta, Georgia 30309 404.290.2977 815.846.0719 (fax) michael.jabl onski@comcast.net

January 25, 2012

Hon. Brian P. Kemp Georgia Secretary of Statl:~ 214 State Capitol Atlanta, Georgia 30334 via email to Vincent R. Russo Ir .. Esq.

(vrusso@sos.ga·g0\1
Re: Dear Secretary Kemp: This is to advise you of serious problems that have developed in the conduct of the hearings pending before the Office of State Administrative Hearings. At issue in these hearings are challenges that allege that President Obama is not eligible to hold or run for re-election to his office, on the now wholly discredited theory that he does not meet the citizenship requirements. As you know, such allegations have been the subject of numerous judicial proc(~edings around the country, all of which have concluded that they were baseless and, in some instances - including in the State of Georgia - that those bringing the challenges ha'le engaged in sanctionable abuse of our legal process. Nonetheless, the Administrative Law Judge has exercised no control whatsoever over this proceeding, and i'l threatens to degenerate into a pure forum for political posturing to the detriment of the reputation of the State and your Office. Rather than bring this matter to a rapid conclusion, the ALJ has insisted on agreeing to a day of hearings, and on the full p~lrticipation of the President in his capacity as a candidate. Only last week, he denied a Motion to Quash a subpoena he approved on the request of plaintiff's counsel for the personal appearance of the President at the hearing, now scheduled for January 26. For these reasons, 3tld as discussed briefly below, you should bring an end to this baseless, costly and unproductive hearing by withdrawing the original hearing request as improvidently issued. PLAINTIFF'S
1n ••

Georgia Presidential Preference Primary Hearings

:0
.(J J!l

JI --

EXI1~8IT

t'

I

It is well established that there is no legitimate issue here--a conclusion validated time and again by courts around the country. The State of Hawaii produced official records documenting birth there; the President made documents available to the general public by placing them on liliswebsite. "Under the United States Constitution, a public record of a state is required: to be given 'full faith and credit' by all other states in the country. Even if a state we:re to require its election officials for the first time ever to receive a 'birth certificate' as a requirement for a federal candidate's ballot placement, a document certified by anotller state, such as a 'short form' birth certificate, or the certified long form, would be required to be accepted by all states under the 'full faith and credit' clause of the United States Constitution." Maskell, "Qualifications for President and the "Natural Born" Citizenship Eligibility Requirement, " Congressional Research Service (November 14, 2011), pAl. Nonetheless, the ALJ has decided, for whatever reason, to lend assistance through his office--and by extension, yours-to the political and legally groundless tactics of the plaintiffs. One of the attomeys for the plaintiffs has downloaded form subpoenas which she tried to serve around the country. Plaintiff's attorney sent subpoenas seeking to force attendance by an office mal;hine salesman in Seattle; seeking to force the United States Attorney to bring an unnamed "Custodian of Records Department of Homeland Security" to attend the hearing with immunization records; and asking the same U.S. Attorney to bring the same records allegedly possessed by "Custodian of Records of U.S. Citizenship and Immigration Services." She served subpoenas attempting to compel the production of documents and the attendance of Susan Daniels and John Daniels, both apparently out of state witnesses, regarding Social Security records. She is seeking to compel the Director of Health for the State of Hawaii to bring to Atlanta the "original typewritten 1961 birth certificate #10641 for Barack Obama, II, issued 08.08.1961 by Dr. David Sinclair ...," even though Hawaii courts had dismissed with prejudice the last attempt to force release of confidenti~ll records on November 9, 2011. Taitz v. Fuddy, CA No. 11-11731-08 RAN. In Rhodes v. McDonald, 670 F. Supp. 2d 1363, 1365 (US DC MD GA, 2009), Judge Clay Land wrote thh: of plaintiff's attorney:

I

I I I I I I I I I

I

I

I

When a lawyerfiles complaints and motions without a reasonable basis for believing that they are supported by existing law or a modification or extension of existing law, that lawyer abuses her privilege to practice law. When a lawyer uses the courts as a platform for political agenda disconnected from any legitimate legal cause of action, that lawyer abuses herprivilege to practice law.... As a national leader in the so-called 'birther movement,' Plaintiff's counsel has attempted to use litigation to provide the 'legalfoundation' for her political ag,mda. She seeks to use the Court's power to compel discovery in her efforts force the President to produce a 'birth

2

certificate' that is satisfactory to herself and her followers." Supp. 2d at 1366.

670 F.

I

I

I

All issues were presented to your hearing officer-the clear-cut decision to be on the merits, and the flagrantly unethical and unprofessional conduct of counsel-and he has allowed the plaintiffs' counsel to run amok. He has not even addressed these issues--choosing to ignore them. Perhaps he is aware that there is no credible response; perhaps he appreciates that the very demand made ofms office-that it address constitutional issues-is by law not within its authority. See, for example, Flint River Mills v. Henry, 234 Ga. 38S, 216 S.E.2d 895 (1975); Ga. Compo R. & Regs. r. 616-1-2.22(3). The Secretary of State should withdraw the hearing request as being improvidently issued. A re ferring agency may withdraw the request at any time. Ga. Compo R. & Regs. r. 616-1 .. -.17(1). Indeed, regardless of the collapse of proceedings 2 before the ALl, the original hearing request was defective as a matter oflaw. Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373. ("The Secretary of State of Georg ia is not given any authority that is discretionary nor any that is mandatory to refuse to allow someone to be listed as a candidate for President by a political party because she believes that the candidate might not be qualified.") Similarly, no law gives the Secretary of State authority to determine the qualifications of someone named by a political party to be on the Presidential Preference Primary ballot. Your duty is determined by the statutory requirement that the Executive Committee of a political party name presidential preference primary candidates. a.C.G.A. § 21-2-193. Consequently, the attempt to hold hearings on qualifications which you may not enforce is ultra vires. We await your takillg the requested action, and as we do so, we will, of course, suspend further participatio n in these proceedings, including the hearing scheduled for January 26.

I I I I I I I I I
I

I

I

I

Very truly yours,

LAu ~1, V~II

.••

/J(

MICHAEL JABLONSKI

Georgia State Bar Number 385850
Attorney for President Barack Obal11a

cc:

Hon. Michael MaHhi (c/o Kim Beal (kbeal@osah.ga.gov))
Van Irion, Esq. (van@libertylegalfoundation.org)

3

Orly Taitz, Esq., (orly.taitz@gmail.com) Mark Hatfield, Esq. (mhatfield@wayxcable.com) Vincent R. Rus:!;o Jr., Esq. (vrusso@sos.ga.gov) Stefan Ritter, Esq. (sritter@law.ga.gov) Ann Brumbaugh, Esq. (abmmbaugh@law.ga.gov) Darcy Coty, Es(ll. (darcy.coty@usdoj.gov) Andrew B. Flakl~,Esq. (andrew.flake@agg.com)

,,\

~

l

4

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