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IN THE SUPREME COURT STATE OF GEORGIA CARL SWENSSON, Applicant

* * *
*

v.
BARACK OBAMA, Respondent

Th
APPLICATION

eF
FOR DISCRETIONARY APPEAL

ds

of

Fr

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.

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*

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CASE NO.

IN THE SUPREME COURT STATE OF GEORGIA CARL SWENSSON, Applicant V. BARACK OBAMA,

* * * *

CASE NO.

Respondent

Now comes AppL_cant undersigned pursuant counsel"

to O.C.G.A,

Th eF og Bo
APPLICATION FOR DISCRETIONARY Carl Swensson, and respectfully applies

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

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

"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.

Applicant's Obama,

of

of Georgia

challeneJe to the qualifications

a presidenti2il candidate, of th(~ United

to seek and hold the Office of Obama

the President eligible

ds

States, and finding Respondent primary

as a candidate

for the presidential

ien

Applicant

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


"A"

attaching

hereto:

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

Granting

Respondent

BarackObama's

Fr

"B" a copy of the "Petition

For Judicial

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APPEAL by and through to this Court for leave to Court of Fulton to Kemp denying Barack of Respondent election. "Order as Exhibit filed by Page -1-

Applicant

in the Superior

Court of Fulton County on February "Motion

2012; as Exhibit

"c"

a copy of Applicant's

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

For Stay of Decision of Presidential

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

Support thereof

sen,'ed on February "Response

copy of Applicant's submitted

to Respondent's

to and accepted

by the Superior

as per the Court's llermission and instructions,

og
PART ONE

Exhibit

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

eF

2, 2012 and thereafter

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

Respondent's

Th

STATEMENT

OF THE CASE For

1.

TYPE OF CJ~E. Appeal

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

Discretionary 2-5(e)

of

pursuant

for leave to appeal

from the Order of the Superior "Petition Secretary

Review"

ds

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

P. Kemp denying Applicant's

ien

Respondent

Obama,

a presidential

candidate,

Office of the President Respondent

of the United

Fr

Obama eli,gible as a candidate

primary

election. Page -2-

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of Secretary Preference and Brief in 27, 2012; as Exhibit Motion of State Brian P. Kemp.

"0" a copy of

Court of Fulton County, by email on March

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

For Judicial of State Brian of

to the qualifications

to seek and hold the and finding

States,

for the presidential

m
of Primary "E" a

15,

For Expedited

to Dismiss"

2.

SUPREME

COURT JURISDICTION.

The Supreme Court has pursuant

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,

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

of the "natural requirement

of Artic:le II, Section

og
pursuant

States Constitution" exclusive 3. appellate

and this case thus falls within jurisdiction.

JUDGMENT l!lPPEALEDAND DATE OF ENTRY. "Order Granting

eF

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

Th
OF FACTS. on November

to Dj.smiss" was entered

STATEMENT

On or before October

of

Barack Ollama submitted

of the Democratic

Party of Georgia

on the Georgia Consequently,

ds

Democ:ratic Presidential

1, 2011, Georgia

ien

Chairman

Mike Berlorl submitted,

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

Office

to be listed on the Georgia Primary Ballot.

Fr

Presidential

Preference

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the eligibility I, Clause 5 of the United The Superior Barack Respondent and filed on March 2, a letter to the Executive Preference Democratic Party to O.C.G.A. Secretary

VI, Section VI,

to Presidential

the construction

seeking to be listed Primary Ballot.

Democratic

m
to O.C.G.A. to the 1983 this Court's 31, 2011,

21-2-193,

of State's

Page -3-

Thereafter, Swensson,

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

2l-2-5(b), Georgia

a resident: of Clayton

County,

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

and an elector of the United

with the Georgia qualifications Presidency Respondent

Se(:retary of State a written

w.
States, challenge contended challenge to an "OSAH"). counsel

of Th eF og Bo
of the United States. Applicant of Arti(:le II, Section I, Clause by O.C.G.A.

of RE~spondent to seek and hold the Office of the that

does not meet the "natural born Citizen"

requirement

States Constitution" As prescribed Secretary

21-2-5(b),

the Office of the

of Statel:eferred law judge

Applicant's

administrative

(hereinafter

"ALJ") of the Office of Thereafter, a

State Administrativ(~ Hearings pursuant hearing to proper

(hereinafter

llotice to all parties, 26, 2012.

the ALJ conducted

on January

Applicant

was present

at trial and submitted and testimony

record, through

cou:lsel, evidence

issues raised by hi:3 challenge.

ds

However,

despite being timely requiring

served with a Notici3 to Produce by Applicant's

ien

Respondent certain

to persollally appear

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

documents

for use as evidence

Respondent

failed to appear

for trial on January

Fr

Likewise,

Responden:'s

attorney

also failed to appear for trial.

co m
Applicant eligible to the eligibility 5 of the United into the pertaining 26, 2012.

and a registered to vote for

timely filed

to the

Page -4-

No evidence

or test:Lmony whatsoever

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

2012 was knowing anci intentional,

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

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

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

of T

he F
election. ~las reported the initial 2012, pursuant Review"

of the United

States as of the date of birth of

presidential the ALJ's

primary

Decision

Subsequently

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

5(c), Georgia Decision

ds

adopting

Applicant's

challenqe.
151

ien

On February

Applicant

timely

fL_ed in the Superior

"Peti tion For Judic_al

Fr

review of the Secre+:ary of State's

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was introduced at trial. into the The failure of to appear for trial on January 26, by a January as demonstrated attorney to Georgia (Exhibit "F"). that Respondent's Obama, was not a Pursuant

21-2-5(b),

to the Secretary

of State.

to O.C.G.A.

21-2-

Kemp issued a Final

of the ALJ and denying

to O.C.G.A.

21-2-5(e),

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

appealing

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

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

Presidential

Preference

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thereafter

On February

27, 2012, counsel

Respondent

argued ttlat the Court lacked jurisdiction

eF

"Motion to Dismiss"

and Brief in Support thereof

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

1, 20_2, the Court notified

Th
fOJ~ Applicant

(Exhibit "0"). counsel for Applicant

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

of

counsel would have until the following

ds

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

ien

by the aforesaid

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

Motion

to Dismiss"

acknowledged

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

Fr

morning

of March 2, 2012

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(Exhibit "C") served a in which for Respondent to respond to Respondent's "Response 14), and the Court

to Respondent's

m
22, 2012, a over the
Page -6-

one-half

(2~) hours later, the Court emailed its file-stamped


ReSI)Ondent Barack Obama's Motion

"Order Granting

(Exhibit "A," pp. 1-2).

PART TWO ENUMERATION OF ERRORS 1. The Super_or

Court erred in holding

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to Dismiss" that O.C.G.A. to the Preference O.C.G.A.

2-5 does not apply ~_n the context of a challenge qualifications Primary. 2. The Superior of a candidate

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Preference

in the Presidential

unconstitutional of a candidate 3.

as applied

Fo

Court erred in holding to a challenge

to the qualifications Primary. that Applicant action

in the Presidential

The Superior

failed to perfect

he

Court erred in holding

sE!rvice and in dismissing of failure to perfect

Applicant's service.

4.

Final Decision

of T

based upon a findinq

The Super~or

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

of the Secretary

ALJ's and the Secret.ary of State's errors in failing to determine

ien ds

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

Fr

21-

21-2-5

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"

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

that Respondent's

time of Respondent':3 birth.

ARGUMENT Applicant 34, concerning provides

PART THREE AND CITATION OF AUTHORITY

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

in pertinent

Th

eF

part that "[a]n application

og
Additionally,

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

when " [r]eversible

desirable."

In the instant

of

to exist" or when"

:t]he establishment

case, as set forth hereinbelow,

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

ds

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significant

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

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pursuant to despite States citizen

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

of a precedent

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

screen the qualifications

contenders,

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

Fr

m
the fact at the the Superior
Page -8-

future presidential is both necessary

candidacies,

the establishment

and desirable.

1.

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

2-5 does not apply :in the context of a challenge qualifications Primary.
The Superior qualifications Presidential

of a candidate in the Presidential

chal.enge Preference

statute, Primary,

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Respondent inasmuch as

Cc)urt held that O.C.G.A.

does not apply to the Preference

as the Presidential

Primary apportions nomination

delegates,

Fo
general requires" 21-2-15

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

or elect::.onof a presidential

Presidential Primary Election

Electic)n, and that the Presidential

he

also found that Respondent

is not yet a "candidate"

is not an "E!lection" within the meaning

of T

Code.

In this connection,

the Superior O.C.G.A.

Court t:hat the definition includes

21-2-2(5)

not a primary "election"

or spE!cial primary

unless the context the inclusion

ien ds

is used "clearly

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

provisions

of O.C.G.A.

Fr

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,

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Preference
Preference contended of "election" or special elections, in which

21-2-5, the Georgia

of the Georgia before

m
found in but

of a precedent

of a primary

Page -9-

Also,

the qual~_fications challenge

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

the qualifications

regardlE~ss of the specific

Court'~3 finding to the contrary,

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

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O.C.G.A.

statute as "candidat~es." Respondent

alsc) argued

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

by the state executive

Fo

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

or must submit "a notice of candidacy,"

2l-2-5(a:,

he

and that neither

taken place as to Respondent. however,

of T

that a cha:_Ienge of the qualifications

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

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statute, O.C.G.A.

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.

of "any

type of election.

contestants

designated

of such conditions

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

party would presumably prior to the general

filing a certificat~_on of his nomination

ien ds

election. "notice

Addition2llly, Applicant

submits that "certified" defined

of candidac~1" are not specifically

Georgia

Election

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

Presidential

PreferE~nce Primary candidates

Respondent's constituted

politic:al party pursuant

to O.C.G.A.

Fr

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

21-2Despite 1n a by and terms in the Page -10-

Accordingly, challenge Preference

i1: is apparent

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

subject-matter Superior 2.

jurifldiction of Applicant's

Court comm:_tted reversible The Superior

Court erred in holding to a challenge

unconstitutional of a candidate

as applied

in the Presidential

The Superior subject-matter First

Court also granted dismissal

juri~;diction based upon Respondent's

(and Fourteenth)

he F

Amendment

political

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

whom to include

While Respondent associational situation ballot

of T

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


~l

in which

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

(citing Democratic

107, 101 S. Ct. 101U, 67 L. Ed. 2d 82 (1981); Duke v. 954 F.

ds

2d 15:26 (11th Cir. 1992)), he also claimed

reverse

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

ien

to require

however,

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

The Superior

Fr

argument,

as the COllrt held that the Secretary

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that the Georgia qualifications have error in holding otherwise. O.C.G.A.

and that the

21-2-5

to the qualifications Primary.

Preference

for lack of

argument

that

associational

rights of a right to determine Primary ballot.

Preference

that First Amendment in the

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

Wisconsin,

that "the right

Respondent,

Page -11-

interfere

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

determination

candidates, presidential

authority

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

that candid~ltes meet constitutional requiren~nts

eligibility

for office in order to be placed on the

state ballot.

Fo

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21-2-5(b)

a state government

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

a candj.date's qualifications, empowered to determine

he

Secretal:y of State, or an eligible

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of its constitutional or statutory and Georgia and the Secretary whether O.C.G.A.

is limited to examining

of its ability to

(c) authorize elector, of

State is thereafter lS qualified

of T

to seek and hold office.

21-2-5(e)

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

ien ds

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

nothing pertaining Respondent's

politic:al party deprived jurisdiction

subject-matter Superior

over Applicant's

case, and the

Court comm:_ tted error in holding

otherwise.

Fr

m
the candidate gives Page -12-

3.

The Superior

Court erred in holding in dismissing to perfect

failed to perfect

sll~rvice and

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

Respondent(s) 9-11-4.

as recIuired by O.C.G.A.

The Superic)r Court apparently

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

of the summons and complaint attorney."

he F

service or a waiver However,

thereof was required

the C2lse of DouGlas Asphalt

Service Commission, controlling.

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

of T

In DouGlas Asphalt,

appeal of an adminL,trative tribunal, personal service

of the petition

upon the agency was not required,

ds

to preserve

the jurisdiction

specifically

noted t:hat service of appeals

ien

decision

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

pertinent

part that "[a] copy of the notice

served on all partiE!s in the same manner prescribed

Fr

og Bo w. co m
that Applicant Applicant's action service.

21-2-5,

to perfect

service upon

21-2-5(e)

and O.C.G.A.

believed

Applicant's

case

for the reason argued by Respondent

was made by mailing

to

Respondent

claimed that personal for a viable suit. Public

Co. v. GeorGia

(2003) is

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

decision

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

of the court.

5-3-21, which provides of appeal

shall be

by Code

Page -13-

Section

5-6-32."

O,C.G.A.

5-6-32(a),

in turn, provides

pertinent

part that

Therefore, Respondent accordance

in 1:he instant

Fo

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.

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case, service of the Petition was in

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

Obama by mailing

with Geo::gia law.

Applicant

of T

further notes, however,

he

same to his attorney

by mail were for an~1 reason not considered

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

but the superior

ien ds

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

necessary appeal."

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

Fr

m
in

5-3service

court

Page -14-

4.

The Superior

Court erred in failing

to reverse

Final Decision

of the Secretary

of State on the basis of the in failing

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

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For Judicial Review, 273 Ga. 106, 108-109, or resolved that, with certain of proof."

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

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Respondent Further, of the burden

Court failed to address

the ALJ's complete

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

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

he

of Placement

t:o Havnes v. Wells,

Fo
in advance

of Burden of Proof" in which he sought 538

(2()00), requiring

to affirmatively

of T

his eligillility for office. motion

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

rule on Applicant's by Applicant, motion

but tile judge never even addressed

in his final ruling.

ien ds

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

exceptions

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

burden

of proof in ~lll matters."

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

to the commencement

the Administrative requires

JJaw Judge may determine

that law or justice

Fr

a different: placement

m
the to determine to challenge. the failure to of
Page -15-

The challenge initiated of State. pursuant

1:0 Respondent's

by the apIJlicable agency, Rather, the challenge

to O.C.G.A,

2l-2-5(b),

with the Secretary challenge, procedure, challenge

()f State .... "

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

Prior to the t]~ial before the ALJ, the "agency,"

Office of the Secret:ary of State, made no determination

to the challenge,

he F

candidate

qualificat:ions; issued no decision; arid it would have therefore

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

of T

eit:her with Applicant

or with Respondent

under Havnes,

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

required, regarding
rd.

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

ds

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

of proof is immediately

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

Fr

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qualifications the Office of the Secretary by Applicant, was commenced "by filing a written Upon the filing of Applicant's as a matter of

herein was not

complaint

21-2-5(b),

to refer the

i.e. the of

and was not a party

been inappropriate suggested must

of proof as initially

The burden

of proof therefore

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

(i.e., to prove himself

was not

anything

eligibility

to run for office .... "

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

counsel's

Page -16-

letter of January Applicant Respondent

2~j, 2012

contends,

bear the burden of proof at trial, then

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

and Applicant Superior

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

Final Decision ALJ's

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

that Respondent Respondent's

he F
alleged h:_s eligibility

mother

time of Respondent'B The ALJ's

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

of T

rulirlg, and consequently

Specj_fically, the ALJ found as "fact":

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

ds

the time of RespondE!nt's birth.

ien

However,

as set: forth hereinabove,

burden

of proving

Respondent

and his attorney

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offer any evidence

\Jhatsoever, and inasmuch

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(Exhibit "F"). If Respondent his burden, of proof is to reverse the of State on the basis of the in finding as "fact" States and that States at the of the United the Secretary to Respondent's qualifications "facts" which the ALJ said he 1) that States; and 2) that of the United States at Respondent carried the as for office. Inasmuch did not appear as the "natural

did, as

Thus, the failure of the

of State, and the ALJ, on

of State's

for trial and did not born Page -17-

Citizen"

requirement: for presidential of Respondent's

eligibility

mandates

examination

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

Bo w. co
and the above "facts" The Superior error.

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

he::einbelow), Respondent

failed to carry his

of proof as to his eligibility,

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

of State, and the ALJ, with

regard to these findings

of "fact" is reversible

6.

The Superior Court erred in failing

og
in Ankenv a United

to reverse the

Final Decision of the Secretary of State on the basis of the

Respondent qualifief:: as a "natural born Citizen" pursuant to

that Respondent's fc:Lther was not a United States citizen time of Respondent'f:1 birth.

Th

Article II of the United States Constitution,

eF

ALJ's and the Secre1:;aryof State's error in finding that

despite the fact at the

was grounded

of

The ALJ's

(and subsequently

the Secretary

of State's)

in the ALJ's adoption

of the non-binding
v. Governor

of the Indiana Court. of Appeals

ds

916 N.E. person

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

finding that a

qualifies

if he was born in the

ien

Uni ted States becaw:e Although,

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

as pc,inted out hereinabove,

no evidence

whatsoe\"er submitted of proof and establish

by Respondent Respondent's

Fr

his burden

m
an of Court's ruling reasonlng of Indiana,

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

birth in the United

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

to Article

unfounded; is contrary

is an inc:orrect statement

to the l:uling of the United

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

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

is bindirlg authority

for the proposition

II phrase

"natural born Citizen" (2) parents

in the United

State~: to two

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evidence birth, The Superior CONCLUSION

Because,

as Applicar.t's undisputed Respordent Obama's

eF

time of the child's birth)

themselves

demonstrated, citizen

father was not a United Respondent requirement

at the time of Respondent's

Th

meet the Article presidency,

II "natural born Citizen"

and the ALJ and the Secretary

of

error in finding ott.erwise. committed Secretary reversiblE

error in failing to reverse

ds

of State cn this issue.1

ien

For the above and foregoing

reasons, Applicant

requests

that the SLpreme Court grant this Application

Fr

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

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is of the applicable that the who were then United States citizens. at trial of State committed Court thus likewise For

States Supreme Court in

refers to a person born (at the

the ALJ and the

m
States law; and States does not for the respectfully

Discretionary Superior

Appeal

and review and reverse

Court in t:lis case. submitted,

Respectfully

this 12th day of March, HATFIELD & HATFIELD,

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

Fr

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of Th eF og B
3J502

At~rney Hatfic\fd \ ark for Ap~cant Georgia Bar No. 337509

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the decision of the 2012.
P.C.

Page -20-

CERTIFICATE
I,

OF SERVICE for Applicant,

J. Mark Hat:~ield, Attorney

certify that I have this day served the foregoing Discretionary Appea:_ upon:
Mr.

Bo w. co
do hereby Application postage affixed thereto in same to Mr. and by emailing & HATFIELD, P.C.

Michael K. Jablonski Attorney at Law 2221-0 Peachtree Road NE Atlanta, Georgia 30309 Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334 by placing addressed a copy o~: same in the United envelope ~lith sufficient

order to insure prO[ler delivery, Jablonski

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

Th

eF

og

States Mail in a properly

and by emailing

to Secretary

This 12th day of March,

ien

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

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Fr

of

3J.502

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For same

Mark Hatfield
From: Sent: To:

Subject:

Attachments:

DOC006.pdf

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

Fr

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PLAINTIFF'S

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

-~--EXHIBIT
,UI ,)

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*

IN TIlE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA


FILE NO. 2012 CNILACTION *

* , LAX, CODY ROTH,

* *

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DEPUTY

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CLERK SUPERIOR N COUNTY. GA

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COURT
~

rED INOFFICi \~ MAR 2.1011 . ~


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* *
v.

* CARL SWENSSON

FILE NO. 2012CV211527 CNILACTION

fT
*

v.

* KEVIN RICHARD POWELL,

FILE NO. 2012CV211528 CNILACTION

Fr

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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
MOTION(S) TO DISMISS

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*

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* *
ORDER GRANTING

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* *
Page 1

* DAVIDP. WELDEN

CNILACTION FILE NO. 2012CV211537

ORDER GRANTING ]!illSPONDENT The above-captioned

BARACK OBAMA'S MOTION(S)

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13, 2012 and February Superior be addressed

actions are before the Court on the Petition(s)

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 15, 2012, respectively. the matters were

assignl~d to four (4) different

Fo
and will, therefore,

transferred to the Honorable

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

an appeal of the same decil:ion issued on February 3,2012 by Administrative

fT he

assigned (Farrar, et al. v. Obama, et aI., Civil Action File No. 2012CV211398),

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

identical

so

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

consolidated

Order to be applied in each case.

Now, having considered

nd

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

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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

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TO DISMISS for Judicial Review Court Judges, Law Judge Michael Barack Obama, filed the Motion(s) Page 2

**

* *

Petitioners allege that Respondent thus, is not qualified for candidacy

in Georgia's

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2012 Presidential Preference The Presidential Preference

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.

Barack Obama is not a "natural born citizen"! and, Primary. Despite its

case because the challenge at issue involves the Presidential

Fo

application in the court be low, this Court does not believe that a.c.G.A.

terms, is an opportunity for electors "to express their preference for one person to be a candidate for nomination."

fT he
O.C.G.A. 21-2-191.

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

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.

vote on "presidential

nd

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

so

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

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

Fr ie

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

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21-2-5 applies in this
Primary, which by its Primary apportions Therefore, because election in question and 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

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

Fr ien

ds
hereby DISMISSED.

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

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

of Th eF og B

Democratic Party of Georgia and is limited in its authority to examining presidential electors.

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Page 4

SO ORDERED this the

2nd

day of March, 2012.

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

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

Fr

ien

ds

Michael K. Jablonski, Esq. 2221-D Peachtree Road, NE Atlanta, Georgia 30309 michael. ablonski@comcast.net

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

of T

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Fo

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fJudge

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

Fr ien

ds
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

of Th eF og B
Page 6

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

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General Civil Case Filing Information Form (Non-neC)


Court
/if

m
FILED IN
FU~,Gf, Maiden Maiden Maiden Maiden

o State

Superior

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

Defendant(s)
Last First

OBAMA, BARACK

Last

First

Middle L Suffix Prefix

Maiden

Last

First

Last

First

Middle L Sutlix Prefix

Maiden

Last

First

Middle L Suffix Prefix

Maiden

No. of Plaintiffs

_1

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Last First Last First

No. of DefelIldants _1

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

Attorney
Middle L

D Pro Se
Sutlix

fT he

Bar # 337509

Check Primary Type (Check only ONE)

o o
o

Contract/Account Wills/Estate Real Property

Personal Property Equity

o
~

Habeas Corpus

nd

Appeals, Reviews

so

o o o

Dispossessory/Distress

Fo
If Tort is Case Type: (Check no more than TWO)
D Auto Accident D PremisesLiability Negligence SpecifY Medical Liability D Other Professional Product Malpractice

Post Judgment Garnishment, Attachment, or Other Relief Non-Domestic Contempt Tort (If tort, fill in right column) Other General Civil SpecifY_

Are Punitive Damages Pleaded? DYes

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MM-DD-YY
Middle L Suffix Prefix Middle L Suffix Prefix Middle L Suffix Prefix Middle L Suffix Prefix
_

DEPUTY CLERK SUPERIOR COURT

[FEB:~~12

0 No

PLAINTIFF'S ~ EXIjIBIT
.tJ

i ~
,1( ~

136 PRYOR STREET, ROOM C-103, ATLANTA, GEORGIA 30303

SUMMONS CARL SWENSSON


Case No.:

vs.

BARACK OBAMA

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

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

ds

This COMPLAI~~

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

Instructions:

Attach addendum

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Plaintiff, Defendant

2..012 C V

HATFIELD & HATFIELD, P.C. 201 ALBANY AVENUE P.O. BOX 1361 WAYCROSS, GEORGIA 31502 (912) 283-3820

._dayof

Deputy Sherriff

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

w.
2/1..52?
is used

IN THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA

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IN THE: SUPERIOR

COURT OF FULTON COUNTY

STATE OF GEORGIA CARL SWENSSON, Petitioner

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FUL];l~~~

], 5 2012

DEPUTY CLERK SUPERIOR COURT

CIVIL ACTION FILE NO.

V.
BARACK OBAMA,

* * *

Respondent

Now comes Petitioner undersigned against counsel,

of Th eF og Bo
~ie:TITION FOR JUDICIAL REVIEW Carl Swensson, and files this Petition Earack Obama as follows:

w.
20/2 by and through For Judicial Petitioner Carl of Respondent primary

c.v 2..11.527

Review

Respondent

1.

This action is an appeal of a Final Decision Secretary of State E1rian P. Kemp denying challenge

of Georgia

Swensson's

to the qualifications candidate,

Barack

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.

election.

ds

This Court has jurisdiction

of this appeal pursuant

to

ien
O.C.G.A.

21-2-5(e).

3.
Carl Swensson Georgia. is a natural person residing in

Petitioner County,

Fr

Clayton

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,

Respondent letter Georgia

Obama,

on or before October Committee

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herein. Party of Democratic Consequently, on Party Chairman the name of as a Democratic Presidential Petitioner challenge challenge born II, Section the Office Petitioner's challenge

31, 2011, submitted

m
a Mike Berlon to the I, Clause of the for Page -2-

to the ExecuLive

of the Democratic

Presidential November

PreferE!nce Primary Ballot. Democratic

1, 2011, Georgia pursuant

submitted, Respondent candidate Preference

to O.C.G.A.

to the Georgia

to be listed on the Georgia Primary Ballot.

of T
to O.C:.G.A. of the United that Respondent

he

States. to O.C.G.A.

Fo

Secretary 5. 21-2-5(b),

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21-2-193, Petitioner's of Article

seeking to be listed on the Georgia

of State's Office

Pursuant

timely filed

with the Georgia qualifications Presidency contended CitizenU

Sec:retary of State a written

of Respondent

to seek and hold the Office of the

ds

does not meet the "natural

eligibilit}' requirement

ien
secretary

5 of the United

Stat.es Constitution.

6.

Also pursuant

21-2-5(b),

Fr

of State t.hereafter referred

a hearing

before

an administrative Hearings.

law judge of the Office of

State Administrative

7.
Pursuant conducted Michael to proper notice to the parties,

on January

26, 2012 before Administrative Petitioner was present evidence

into the record, pertaining

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through counsel, to the issues raised by his challenge. however, did not appear or testimony whatsoever. 8. 3, 2012, the administrative a copy of which is attached as a candidate primary election. Pursuant Jaw judge's Decision of State.

M. Malihi.

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and testimony for the to O.C.G.A.

at trial and submitted

his attorney, submit

for trial and failed to

any evidence

On February initial

law judge issued an hereto as Exhibit

Decision,

"A," finding Respond.ent eligible presidential

the administrative Secretary

was reported

9.

Georgia

ds

On February

7, 2012, pursuant

to O.C.G.A.

Secretary

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

ien

a copy of which is attached initial Decision

of the administrative

law judge and denying

Petitioner's

challenge.

Fr

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a hearing was Law Judge Respondent and

21-2-5(b),

to the

21-2-5(c),

Page -3-

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

21-2-5(e),

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Petitioner now appeals of that Final rights of the the findings, of State are: and laws of this authority and exercise the following of State's the Decision to the cases of

review of the Secretary

of State's Final Decision

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

In violation

of the Constitution

In excess of the statutory

Fo
procedures; 11.

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would enumerate

of the Secretary

of the Secretary

Made upon unlawful Affected Clearly

he

by other errors of law; in view of the reliable, probative,

erroneous

and substantial (f)

of T

evit.ence on the whole record; and capricious

Arbitrary

and characterized

of discretion

and a clearly unwarranted

of discretion.

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In particular, grounds

Petitioner

specific Decision

for review of the Secretary

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

(a)

Secretary

of State s.dopting the initial

of said judge,

Fr

erred in issuing a ::::ingle ruling applicable

m
and inferences, by an abuse Final Page -4-

Petitioner counsel)

and cert2lin other individuals challenged

(represented by separate

who independently

Respondent's

qualifications,

desf1ite the fact that the evidence; advanced by Petitioner Swensson

and legal argument

ow .
Decision mother birth. Decision'of to compare as Decision

that offered by such other individuals; (b) Secretary The administrative of State adopting

law judge, and consequently

erred in finding as "fact": United States;

1) that Respondent

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two or admitted

the initial

and 2) that Respondent's

the United
(c)

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

Fo
the initial the initial

law judge, and consequently

Secretary

erred in considering Respondent's certificates

he

as evidence

(2) electronic

purport,:=d"long form" and "short form" birth

fT

which were attached

to a letter sent, prior to of State, despite the fact that

trial, by email to the Secretary

accordance

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such images were never tendered

into the record in

with the rules of evidence;

and despite the fact that such images

Petitioner

was never given an opportunity

wi th the originals documentary applicable (d)

o::~ have the images established to according

evidence

to the rules of evidence

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to the superior

courts of this state; the

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

Fr

Secretary

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testimony; differed from the of said judge, was born in the was a citizen of the said judge, images of 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

of proof in reaching

Petitioner's

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

filed a pre-trial Burden of Proof";

(e) Secretary erred appear

The administrative of State adopting

law judge, and consequently the initial

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

Petitioner's independent (f) Secretary

to Respondent's

Fo
the i0itial as a "natural the initial construe

The administrative of State adopting

he

law judge, and consequently Decision

erred in adopting in Ankeny

of T

the reasoning

of the Indiana Court of Appeals

v. Governcr of Indiana and in finding that a person


qualifies born Citizen," pursuant being of to

automatically Article

II of the United

States Constitution,

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born in the United his parents; (g)

~:tates, without

regard to the citizenship

The administrative of State adopting

law judge, and consequently Decision

Secretary

erred in failing to properly States Supreme

Fr

Court in Minor v. Happersett;

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in of Placement of the Decision deliberate failure to qualifications the by merely the

of said judge,

and in failing to sustain on that

of said judge,

of said judge,

the ruling of the United

m
specifically Page -6-

(h) Secretary

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

erred in finding that Respondent Citizen" pursuant to Article

II of the United States

Constitution, United

despite

the fact that Respondent's

States citizen

at the time of Respondent's

Secretary

of Th eF og B
of State adopting of appropriate (and Respondent's counsel) and deliberately to Produce Notice 12. respectfully requests hearing and review of this Petition Preference Presidential to take place on March 13. to O.C.G.A. requests

(i)

The administrative

law judge, and consequently

the initial Decision

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

request to certify

the facts of the contemptuous in knowingly,

Respondent

intentionally, Petitioner's

failing to comply with

served upon Respondent.

Petitioner expedited

that the Georgia scheduled

weeks hence.

ien

ds

6, 2012, less than three

Pursuant

21-2-5(e),

respectfully Decision

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

Fr

of the Secretary

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the of said judge, as a "natural born birth; and the of said judge, to this a of action including behavior that this Court grant an due to the fact is (3) Primary Election Petitioner further

father was not a

Page -7-

be included presidential Court

on the ballot primary

in Georgia as a candidate pending

election

reviewing

said Final Decision. 14.

This Petition

is timely

filed within ten by the Secretary 15.

entry of the Final Cecision

Pursuant

to O.C.G.A.

21-2-5(e),

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under review. eligible requirement in contempt

soon as possible transmit entire

after service of this Petition,

to this Court the original

Fo
Carl Swensson Respondent

or a certified

record of the proceedings Petitioner

WHEREFORE, that this Court: (1)

Conduct

an expedited (2) Secretary

of T

basis;

Grant Petitioner

he
a hearing

and review the record in this case on

a stay of the Final Decision

of State finding in Georgia

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a final judgment of State. the Secretary respectfully to be included for the presidential of the ballot in

(10) days after the

is required to copy of the

the ballot election

as a candidate

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pending

a final judgment

of this Court; the Final Decision

(3)

Issue an order reversing

Secretary

of State, "natural

finding that Respondent born Citizen"

does not meet the for the presidency,

Article

II

removing Georgia,

Respondent's

name from the presidential

Fr

and adjudg:.. Respondent ng

of court for his

m
for the of this of State, 'as requests of the on primary Page -8-

deliberate

failure to comply with Petitioner's proceedings; and

Notice

(4)

Grant suc~ other and further relief as the Court may

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

2012.

HATFIELD

31502

Fr

ien

ds

of

Th

eF

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

og
Page -9-

Bo w. co
& HATFIELD,
P.C.

in theadministrath'e

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to Produce

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

v.
BARACK OBAMA.

Counsel for Defendant:

Defendant.

DAVID P. WELDEN, Plaintiff,


v.

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

Counsel for Plaintiff: Counsel for Defendant:

BARACK

OBAMA,

Defendant.

CARL SWENSSON, Plaintiff,


v.

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

BARACK OBAMA, Defendant.

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Counsel for Defendant:

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KEVIN RICHARD POWELL, Plaintiff, Docket Number: OSAH-SECST ATE-CE1216823-60-MALIHI Counsel for Plaintiff: Counsel for Defendant: J. Mark Hatfield Michael Jablonski

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BARACK OBAMA, Defendant.

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Michael Jablonski

J. Mark Hatfield
Michael Jablonski

DECISION

Plaintiffs allege that Defendant President Barack Obama does not meet Georgia's

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

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.

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

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Court would entcr a default order against a party that fails to participate in any stage of a Ga. Compo H. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the

proceeding.

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.

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As required by Georgia Law, Secretary of State Brian Kemp referred Plaintiffs'

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office who has been certified by the state executive committee of a political party, and

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eligibility requirements fot candidacy in Georgia's 2012 presidential primary election.

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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

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based on the law, as well as the evidencl~and legal arguments presented at the hearing.

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Evidentiary Arguments of Plaintiffs Farrar, et al.

Plaintiffs Farrar, Lax, Judy, Malaren, and Roth contend that President Barack

Obama

maintains

a fraucLulently obtained

social security number, a Hawaiian

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.

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

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

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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

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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).

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

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

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Obama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr. birth

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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

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

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.

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the testimony of an expert witness to be received, his or her qualifications as such must

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that she has concluded that the social security number Mr. Obama uses is fraudulent;

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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
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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

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

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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).

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States citizen. Plaintiffs contend that, because his father was not a U.S. citizen at the time

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Application of the '''Natural Born Citizen" Requirement

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

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

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;:

(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.

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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

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

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mention of the term "natura1 born citizen" in the Constitution is in Article II, and the term

n (natural born citizen provision) in tandem and held

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and analysis of Arkeny penmasive.

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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

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).

constitution of the United States is necessarily influenced by the fact that its provisions

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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,

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

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Fourteenth Amendment and "natural born citizen of the United States" in Article II to

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citizens." 88 U.S. at 167. However, the Indiana Court explains that Minor did not define

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

The Wong Kim Ark Court expillined:

169 U.S. at 655.

Jd. at 658.

Further:

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

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ld. at 662 (quoting Finally:

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).

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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.

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

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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.

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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.

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.................

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Relying on the language of the Constitution and the historical reviews and analyses of Minor and
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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

election under a.c.G.A. 21-2-5(b).

SO ORDERED, February

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3rd,

President Barack Obama is eligible as a candidate for the presidential primary

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2012.
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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.

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'\Jk' t~~ c
;,WI MICHAEL M. MALIHI, Judge

~,UvJ~

DAVID FARRAR, LEAH LAX, CODY .JUDY, THOMAS MALAREN, I,AU RIE ROTH,

Petitioners,
v.

RARACK ORAMA, Respondent.

DAVID P. WELDON, Petitioner,


v.

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BARACK OBAMA, Respondent.

CARL SWENSSON, Petitioner,


v.

Th

BARACK OBAMA,

of

Respondent.

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KEVIN RICHARD POWEI,L, Petitioner, Docket Number: OSAH-SECSTA TECE-1216823-60- MAUHI Counsel for Petitioners: Counsel for Respondent:

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v.

BARACK OBAl.'\IA, Respondent.

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Docket Number: OSAH-SECST ATECE-1215136-60- MAUHI Counsel for Petitioners: Orly Taitz Counsel for Respondent: Docket Number: OSAH-SECSTATECE-121S137-60- MALIHI Counsel for Petitioners: Counsel for Respondent: Van R. Irion Docket Number: OSAH-SECST ATECE-1216218-60- MALIDI Counsel for Petitioners: Counsel for Respondent:

IN THE OFFICE OF THE SECRETARY OF STATE STATE OF GEORGIA

Michael Jablonski

Michael Jablonski

J. Mark

Michael Jablonski

J. Mark

Michael Jablonski

m
Hatfield Hatfield

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

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 ~:~

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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.

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day of Febmary, 2012.

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Georgia Secretary of State

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challenge on January 26, 2012 and entered an initial decision for the above-captioned cases on

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CERTIFICATE

OF SERVICE

I, J.
certify Petition

Mark Hatfield,

Attorney

for Petitioner,

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

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

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Honorable Brian P. Kemp Secretary of State state of Georgia 214 State Capitol Atlanta, Georgia 30334 envelope with sufficient delivery, postage at michael.iablonski@comcast.net, Kemp at vr.usso@sos.oa.oov, at kbea,l@osah.ga.oov. 2012. 31502

Honorable Michael M. Malihi Administrative Law Judge Office of State Administrative 230 Peachtree Street NW Suite 850 Atlanta, Georgia 30303

by placing addressed

a copy of same in the United States Mail in a properly affixed thereto in

order to insure proper Jablonski Secretary

and by emailing

and by emailing

Judge Malihi

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

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This 15th day of February,

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do hereby Summons and thereto upon: Hear.ings same to Mr. same to by emailing same to

IN THE' SUPERIOR

COURT OF FULTON COUNTY

STATE OF GEORGIA CARL SWENSSON, Petitioner

*
* *

CIVIL ACTION

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by and through or, in the Petitioner Carl of Respondent primary

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-review of the Georgia Barack election.

FILED IN OfFICE

DEPUTY CLERK SUPERIOR COURT FULTON COUNTY, GA

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V.
BARACK OBAMA,

FILE NO. 2012CV211527

*
*

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,

and moves the Court for an expedited appellate proceeding

of the above-captioned alternative, Secretary

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

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

Presidential Motion,

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Carl Swensson,

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challenge

Petitioner

E:hows to the Court the following:

This action is an appeal of a Final Decision of Georgia

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Secretary

of State Brian P.

Kemp denying

Swensson's Obama,

to the qualifications

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a presidenti~ll candidate, of the~ United

the President eligible

States, and finding Respondent

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and in support of this

to seek and hold the Office of Obama

as a candidate

for the presidential

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F:ILAINTIFF'S EXHIBIT

Page -1-

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The Georgia scheduled

Pre~sidential Preference

to take place on March

the date of this Motion.

O.C.G.A.

21-~:-5(e) guarantees

appellate

review of the adverse

State in this matter.

Petitioner's significant Respondent, United

afpeal involves,

whose father was a foreign national

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5.
of the Georgia Petitioner

issue of constitutional

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

eligibility United

States Constitution.

Unless this COL.rt grants expedited

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Court orders a stay of the Final Decision

Primary

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State and a postponement Election

of the Georgia

per.ding a final judgment

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Respondent

will likely claim that Petitioner's Presidential

after the holding Election.

Although

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with any such claim by Respondent,

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2.

Primary Election

is

6, 2012, only two (2) weeks from

3.

Petitioner

the right to of

decision

of the Secretary

4.

among other issues, a law, i.e. whether

or not

and never a

II,

Section

I, Clause 5 of the

review, or unless of the Secretary

this of

Presidential

Preference

of this Court, action is moot Preference Primary

would disagree, nevertheless

and does disagree, Petitioner

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

shows that Uniform provides

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

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with Petitioner's alternative of the Georgia of the Georgia Primary Election, 21-2-5(e), Petitioner

("Motions in emergencies.U)

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Superior that request Secretary Presidential of State[,] applicable

for an expedited

stay of the Final De8ision herein

and for a postponement

Preference a.C.G.A.

shows that pursuant

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

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

a stay upon appropriate

shown."

a.C.G.A.

5-3-28(b),

appeals may

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to superior

8ourt, provides

that "[t]he superior

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

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jurisdiction

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

Petitioner

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the review of the Se8retary

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review Court Rule for a of State to shall ...the terms for good to court in aid of its

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

this Court should g]~ant expedited

review of the instant

or, in the al ternat:.ve, the Court should grant a stay of the

postponement Election

of the Georgia

Presidential

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2012. & HATFIELD,

Final Decision

of the Georgia

Secretary

of State herein Preference

currently

~;cheduled for March 6, 2012.

WHEREFORE,

Peti.tioner Carl Swensson

This 21st day of February,

Fo
HATFIELD

that this Court grarlt the relief requested by Petitioner

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

fT he
31502

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adjudicated, and a Primary respectfully P.C.

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appeal requests herein. Page -4-

CERTIFICATE

OF SERVICE

I, J.
certify

Mark Hatfield,

Attorney

for Petitioner,

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

Secretary Preference

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


Mr.

of Presidential

by placing addressed

a copy of same in the United

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delivery,

Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334

order to insure proper Jablonski

Th

envelope

with sufficient

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postage 2012. HATFIELD

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

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States Mail in a properly affixed thereto in same to Mr. same and by emailing & HATFIELD,
P.C.

and by emailing

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

This 21st day of February,

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

ds

of

to Secretary

31502

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Expedited

For Stay of Decision

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do hereby Motion For of

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

CARL SWENSSON, Petitioner, vs. BARACKOBAMA Respondent

Civil Action File Number 2012 CV 211527

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).

Argument in favor of the motion to dismiss is set forth in the accompanying brief. Respectfully submitt,ed,

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This 27th day of February, 2012.

MICHAEL JABLONSKI Georgia State Bar Number 385850

2221-D Peachtree Road NE Atlanta, Georgia 30309 404 -290-2977 michael.jablonski@comcast.net

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MOTION Ta DISMISS 11-12(b)(6).
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. 9-

w.
PLAINTIFF'S EXHIBIT

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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

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

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by statutory electronic service pursuant to O.C.G.A. 9-11-5(e) using the email address

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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

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.

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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).

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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.

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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).

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An effort to harass the President continues with qualification challenges filed across the country and in Georgia. Challengers ignore procedural and evidentiary

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.")

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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).

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requirements because their claims are without merit, based on fantasy, and offered in

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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

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

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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

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basis to question the Presid.ent's citizenship or qualifications to hold office.

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(9th

President Obama was a United States citizen from the moment of his birth in

Cir., 2011). There is no

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.

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

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.

an internal party matter. The State of Georgia may not interfere with "the traditionally

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

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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."

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recognized autonomy ofthe political party's internal decision-making." Belluso v.

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Apportionment of delegates as a result of preference primary results constitutes

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Cleland, 954 F.2d 1526, 15:30-1(11th Cir. 1992). First amendment associational rights of

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Wisconsin

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).

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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,
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Handel v. Powell, 284 Ga.

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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

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

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

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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

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).

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should be dismissed.

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

of

and void. See Estate ofMar,./orie C. Thurman v. Dodaro, 169 Ga.App. 531, 532(1), 313

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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

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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

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

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mhatfield@J\vayxcable.com.

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IN THE SUPERIOR

STATE OF GEORGIA CARL SWENSSON, Petitioner

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COURT OF FULTON COUNTY

* *

v.
BARACK OBAMA,

CIVIL ACTION

I
'

II MAR 05;-J
. " ..

! FILEtDN

OFFICE

DEPUTY CLERK SIJPERIOR COURT .. FULTON COUNTY, GA ,

FILE NO. 2012CV211527~"~'"

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.,

Respondent

PETITIONER'S RESPONSE TO RE:SPONDENT'S MOTION TO DISMISS Now comes Petit.ioner Carl Swensson, undersigned Motion counsel,

by and through

he F
and responds PRELIMINARY Page -1''1\

to Respondent

Barack Obama's

to Dismiss herein as follows:

STATEMENT initially claims that

Respondent the instant country

Obarna's Motion

to Dismiss

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

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

Respondent including

further claims that those individuals, challenges

PetitioneI' herein, bringing

qualifications requirements

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for elffice "ignore procedural

and evidentiary

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

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Respondent moment

fantasy,

and offereel in pursuit

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

of his birth in Hawaii"

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Constitutional

(sic; qualifications

A review of

PLAINlhFF'S
EXHI1BIT
J./ .-

I:::.

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

reveals

that Respondent's

Petitioner Respondent United

first notes that no individual,

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

States.

seeking to hold the Office

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

With the foregcing it was Respondent

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in mind, Petitioner Obama, Ballot. Likewise, law, Petitioner qualifications challen:Je dismissed. requiring did not object. and attacked Page -2-

in fact, who initiated

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Respondent Secretary

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including the submission Democratic with his rights to have the Respondent's

States and the Several

would point out that of

his name as a candidate Presidential

to be listed on the Georgia in accordance

under Georgia

raised an administrative

to the Respondent's pursuant

as a "natural born Citizen"

to Article

II of the United States Constitution.

Petitioner's

so

Respondent

and his lawyer tried, unsuccessfully,

was then legally

served with a Notice to Produce,

him to appear at trial with him.

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and to bring certain documents

and items of evidence

The Respondent

When the time for trial was imminent,

lawyer wrote a letter to the Georgia criticized

of State in which law judge

he boldly

the administrative

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of the of the challenge

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

or duties on his official Secretary

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

to Produce.

only presented office,

of his own as to his eligibility significant pieces

but he faile,d to produce was legally

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entitled. misconduct and considering requirements,H Constitution Petitioner Page -3-

to which Petitioner

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

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

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

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procedural political

and whose

factual assertions

to support with any evidence Petitioner, availing

of

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

far from seeking to "harassH

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himself

of lawful procedures

to properly

raise and have finally determined

whether

Respondent,

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

a United States

citizen,

under Article United

II of:he

States.

In tJlat regard,

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to had no events and after the for of evidence and failings of total Respondent's thereof, who is "in pursuit - which he fails under Georgia law in order the issue of eligible of the for the Presidency contends that the

it

who "ignore [s] of a

and never

"natural prevent national command

born Citizl:m" requirement

of Article

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

citizenship

the presidency forces.

less than a matter and construction

security that the proper meaning

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

162 (~_875), be conclusively

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of the "natural

born Citizen"

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confirmed While Respondent

It is thus nothing

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

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

the exclusive

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right to determine Primary ballot.

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rights of a political

Presidential contends

Preference

that First Amendment

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whom to include associational rights of a party are in which a party refuses Party of ballot (citing Democratic (11th Cir. 1992)), he is also true" in that the party has certain names on its primary cites no authority for the latter are Page -4-

"most often litigated" to permit

U.S. v. Wisconsin,

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(1981); Duke v. Cleland,

of

in the situation

a name on a primary

50 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82 954 F. 2d 1526

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also claims that "the reverse the unchecked right to require however,

ballot.

Respondent,

proposition.

Moreover,

none of the cases cited by Respondent

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II was intended and dual to requirement, as

and the ultimate

authority

for the conclusion associational

that a political rights deprive

constitutional its ability statutory placed

to requj.re that candidates

eligibilit:y requirements

on the state ballot.

O.C.G.A. Secretary

21-2-5(b) and

(c) authorize Georgia

of State, or an eligible qualifications,

a candidate's thereafter qualified elector

and the Secretary whether

empowerec: to determine

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jurisdiction however, jurisdiction. Page -5-

to seek and hold office. challenging

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

eF

unsuccessfully

Court of Fulton County.

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

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associational

this Court of subject-matter

of

Respondent the Georgia

also contends,

qualifications Preference

challenge

does not have subject-matter Respondent O.C.G.A. points

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the Presidential

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

out that the definition includes

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21-2-2(5)

general or special elections, unless the context in which

not a primary

or special primary

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party's a state government or meet constitutional for office in order to be the Georgia elector, to challenge of State is is gives the candidate O.C.G.A.

of

21-2-5(e)

an

a candidate's

qualifications by filing a

of State's decision

Given the to the

nothing pertaining political

party deprives

in this matter.

that O.C.G.A.

21-2-5,

statute,

does not apply to

"election"

is used "clearly

requires"

the inclusion

or special primary. Respondent 21-2-15 inasmuch overlooks, as however,

the provisions

Respondent challenge

the qualifications type of election. Primary

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further statute, ().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.

fails to realize that the qualifications

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

e)f "any candidate,"

(:ontestants in a Presidential as "candidates."

are designated

Respondent "certified or must

nev(~rtheless argues that a "candidate" committee

by the state executive

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Preference O.C.G.A.

of a political

submit "a notice

of candidacy,"

see O.C.G.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,

ds

of the qU~llifications of any candidate

any time prior to the election

of such candidate,"

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Respondent's certification Petitioner

political

party would presumably

of hi~; nomination

prior to the general

addition~llly submits that "certified" are not specifically

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candidacy"

defined terms in the Georgia

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of a primary of O.C.G.A.

21-2-193. must be party"

21-2-5(a),

may be made "at and

be filing a election.

and "notice of

Election

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

Preference

party pursuant "certification"

to O.C.G.A.

or a. "notice of candidacy." i': is apparent

Accordingly, challenge Preference jurisdiction


II.

that the Georgia qualifications

Primary ,md that this Court does have subj ect-matter herein,
OlIr

SERVICE

SUMMONS

Respondent

als() seeks dismissal

[R]espondent's service

attoJ~ney."

eF
by O.C.G.A.

of the summons and complaint

og
Respondent

was made by mailing

or a waiver

thereof was required

Bo

statute dc)es, in fact, apply to the Presidential

for the reason that "service to

claims that personal for a viable suit.

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

Th

Co. v. Georqia

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

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

of an admini~;trative decision personal

tribunal,

to preserve

ds

upon the agency was not required,

of

service of the petition

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

the juri.sdiction of the court. noted that service of appeals

Fr ien

specifically

decision

is governed

5-3-21, which provides

pertinent

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

served on all partiES

Page -7-

w.
(2003) is

co m
Public Service

political

Section

5-6-32."

O.C.G.A.

5-6-32(a),

in turn, provides

pertinent

part that

Therefore, Respondent accordance however,

in t:he instant case, service of the Petition upon

Obama by mailing with Georgia

he

Fo
law. Petitioner

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.

same to his attorney

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5-3-21(b) dismissal

of T

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

considered

that "[f]ailure dismissal, enter

to Tlerfect service on any party shall not work and

but the fluperior court shall grant continuances to permit

expeditious III.

ds

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

ien

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

Respondent

party when challenging is the Secretary

a decision made by the Secretary Respondent

Fr

of State."

Page -8-

ow .co
was in notes in passing, states in pertinent part a just and states such contention

m
in

with no citation Respondent

of authority

whatsoever.

goes on ~o claim that Petitioner's Respondent,

seek any relief against Secretary of State.

but only against the

Respondent

further contends

lack of personal

jurisdiction

over the Secretary

"[n]o summons commands this matter." Beginning with,the

appearance

by the Secretary

of Th eF og B
is flawed. O.C.G.A.

latter issue of "summons,"

legal analysis Petitioner's decision action. O.C.G.A. service

Petition

For Judicial Review

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

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

the original reviewing

copy of the entire record ...to the is "summons" required

court."

in this statute

or even mentioned. Likewise,

O.C.(;.A.

5-3-21(b) provides

parties ...."

ds

that "[a] copy of the notice of appeal shall be served on all 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

Fr ien

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

the judgment

Page -9-

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Nevertheless, action does not of State, as of State in Respondent's 21-2-5(e) makes plain that is an appeal from the civil after of State shall transmit in pertinent part

that there is a

court which denied dismiss personal

the agency's motion

to dismiss.

had been based upon an allegation service. the Secretary

of failure to perfect

proper State court. brought

party to thi:3 petition. is essentially

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

w.
challenge of State Petitioner

As for his roll;; herein,

of State is not a

of Th eF og Bo
The challen:je to Respondent's by the Secretary were the named parties below, the challenge; in any manner. at stake in this challenge of Std.te. Petitioner's between Petitioner and the Secretary The challenge was a dispute between adjudicated and sam';; was merely Petition The instant does therefore of the Final Decision born Citizen" requirement name from the ballot, Page -10-

in a quasi-judicial

qualifications

of State, but by Petitioner.

and Respondent

and Respondent the Secretary

least up until trial) defended State with

did not defend. the challenge an interest

was Respondent,

the Secretary

Under these circumstances, dispute agency).

Respondent, State.

by the Secretary

state a claim against

ds

Respondent.

The items of relief sought by Petitioner are a reversal

ien

action

of the Secretary II

State,

a finding that Respondent

does not meet the Article for the presidency,

"natural

Fr

of Respondent's

an order adjudging

co m
The motion (at of The entity not (i.e. the and of in the instant of

to

of

Petitioner

was not a

a removal

Respondent comply

in contempt

of court for his deliberate Notice

with Petitioler's

to Produce in the administrative a postponement of the

proceedings; Presidential

and conditionally, Preference

Primary Election.

relief be granted b:{ this Court, such would be primarily

w.
The Secretary citation the challenge court. however,

Should the requested granted

Secretary

of State \~ith direction

Bo
to the Secretary brought (2) parties

in the form of an order reversing

the Final Decision

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. of State this

granting

of the requested

applicable considered

statutes a party.

require the Secretary

eF
only two
Page -11-

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

Petitioner Handel

Th

further notes that Respondent's

og
instant case.

of State to be named or

v. Powell, 2U4 Ga. 550

(2008) is misplaced,

Secretary

of

of State there personally qualifications.

candidate's elector,

There was no challenge

filed the petition Secretary initial

ds

as in Petitioner's

Powell, the candidate,

for judicial

review, and Powell and the in both the

of State ~rerethe

Fr ien

challenge

and the appeal to superior

Petitioner

agai.n notes in passing,

Secretary

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

co m
failure to of the of State as to to as the to a filed by an that even if the

party

to this appeal who had not been properly states in pertinent

5-3-21(b) service court

part that "[f]ailure

on any part:! shall not work dismissal,

shall grant continuances to pennit

and enter such other orders as may determination of

be necessary the appeal."

a just and expeditious

For the above and foregoing requests that Respondent's

gB
reasons,

CONCLUSION

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

Fr

ien

ds

of T

he

3~.502

Fo

Page -12-

ow .
Petitioner

co m
served, O.C.G.A. to perfect but the superior respectfully

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

by placing addressed

a copy oj~ same in the United States Mail in a properly envelope ~lith sufficient

eF
2012.
"\

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postage HATFIELD

Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334

order to insure prol)er delivery,

and by emailing

to Secretary

Kemp at vrusso@sos.qa.qov.

This 2nd day of March,

Th

Jablonski

at michael.iablonski@comcast.net

ds

of

J~Mark Hatfie Attlorney for P~t Georgia Bar No.

ien

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

31502

Fr

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Petitioner's affixed thereto in same to Mr. same and by emailing

& HATFIELD,

P.C.

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

Fr

ien

3/2/2012

ds

of T

he

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.

Fo

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J. Mark

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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

Cc:
Subject:

RE: Farrar, et al. v. Obama, et a!.: 2012CV211398; Welden v. Obama: 2012CV211537, v. Obama: 2012CV211527, Powell v. Obama: 2012CV211528

w.

Importance: High

Counsel/Parties:

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\"

Fr ien

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. may proceed in this manner.

All parties/counsel

3/2/2012

ds

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

of

Th

Elizabeth Baum Staff Attorney to the Honorable Cynthia D. Wright

eF

Thank you for submitting these Responses to us within the timeframe articulated doing so by email as requested ..

og

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. and for

Bo

co m
Russo, Swensson

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\'

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.

"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,

Fr ien

3/2/2012

ds

J. Mark Hatfield

of

Th

eF

og

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:

Bo

w.

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rae;c

VI

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

Fr ien

3/2/2012

ds

of

Th

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Michael Jablonski
Attorney-at-law

January 25, 2012

eF

og

Hon. Brian P. Kemp Georgia Secretary of Statl:~ 214 State Capitol Atlanta, Georgia 30334

Re: Dear Secretary Kemp:

Georgia Presidential Preference Primary Hearings

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.

Fr

ien

ds

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

of

Th

Bo w. co m
260 Brighton Road, NE Atlanta, Georgia 30309 404.290.2977 815.846.0719 (fax) michael.jabl onski@comcast.net

via email to Vincent R. Russo Ir .. Esq.

(vrusso@sos.gag0\1

:0
.(J J!l

JI --

EXI1~8IT

t'

I I I I I I I I I

In Rhodes v. McDonald, 670 F. Supp. 2d 1363, 1365 (US DC MD GA, 2009), Judge Clay Land wrote thh: of plaintiff's attorney:

Fr

ien

ds

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

of

Th e
2

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.

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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.

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

I I I I I I I I I
I

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.

ds

Very truly yours,

ien

LAu ~1, V~II

MICHAEL JABLONSKI

Georgia State Bar Number 385850


Barack Obal11a

Attorney for President

Fr

cc:

Hon. Michael MaHhi (c/o Kim Beal (kbeal@osah.ga.gov))


Van Irion, Esq. (van@libertylegalfoundation.org)

of Th eF og Bo
.

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).

/J(

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670 F.

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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)