powell v obama, application for discretionary appeal, georgia supreme court, 3-13-2012

8/2/2019 Powell v Obama, Application for Discretionary Appeal, Georgia Supreme Court, 3-13-2012

http://slidepdf.com/reader/full/powell-v-obama-application-for-discretionary-appeal-georgia-supreme-court 1/90

IN THE SUPREME COURT

STATE OF GEORGIA

KEVIN RICHARD POWELl.,

Applicant

V.

BARACK OBAMA,

Respondent

*

*

*

*

*

CASE NO.

APPLICATION FOR DISCRETIONARY APPEAL

J. 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

[email protected]



KEVIN RICHARD POWELJi.,

Applicant

IN THE SUPREME COURT

STATE OF GEORGIA

*

*

V.

BARACK OBAMA,

Respondent

*

*

*

CASE NO.

APPLICATION FOR DISCRETIONARY APPEAL

Now comes Appl:_cant Kevin Richard Powell, by and through

undersigned counsel., and respectfully applies to this Court

pursuant to O.C.G.A. §§ 5-6-35(a) (1) and 21-2-5(e) for leave to

file a discretionar~T appeal from the Superior Court of Fulton

County's "Order GraIlting Respondent Barack Obama's Motion to

Dismiss," which was entered and filed on March 2, 2012, in

Applicant's Fulton ~;uperior Court action appealing a Final

Decision of Georgia Secretary of State Brian P. Kemp denying

Applicant's challencJe to the qualifications of Respondent Barack

Obama, a presidentiill candidate, to seek and hold the Office of

the President of the~ United States, and finding Respondent Obama

eligible as a candiejate for the presidential primary election.

Applicant respectfully shows to the Court that he is

attaching hereto: a'3Exhibit nAn a copy of the aforesaid "Order

Granting Respondent Barack Obama's Motion to Dismiss"; as Exhibit

nBn a copy of the "::>etitionFor Judicial Review" filed by

Page -1-



Applicant in the Superior Court of Fulton County on February 15,

2012; as Exhibit "C'I a copy of Applicant's "Motion For Expedited

Review or, Alternat~_vely, For Stay of Decision of Secretary of

State and For Postpc)nement of Presidential Preference Primary

Election" filed on ~~ebruary 22, 2012; as Exhibit "0" a copy of

Respondent Barack Obama's "Motion to Dismiss" and Brief in

Support thereof served on February 27, 2012; as Exhibit "E" a

copy of Applicant's "Response to Respondent's Motion to Dismiss"

submitted to and acc:epted by the Superior Court of Fulton County,

as per the Court's I)ermission and instructions, by email on March

2, 2012 and thereaf-~er stamped as filed on March 5, 2012; and as

Exhibit "F" a copy of a letter dated January 25, 2012 from

Respondent's attorn(~y to Secretary of State Brian P. Kemp.

PART ONE

STATEMENT OF THE CASE

1.TYPE OF

Q~SE. This case is an Application For

Discretionary Appea. pursuant to O.C.G.A. §§ 5-6-35 (a)(1) and 21-

2-5(e) for leave to appeal from the Order of the Superior Court

of Fulton County di:3missing Applicant's "Petition For Judicial

Review" of a Final :)ecision of Georgia Secretary of State Brian

P. Kemp denying Applicant's challenge to the qualifications of

Respondent Obama, a presidential candidate, to seek and hold the

Office of the Presi(lent of the United States, and finding

Respondent Obama el.Lgible as a candidate for the presidential

primary election.

Page -2-



2. SUPREME COURT JURISDICTION. The Supreme Court has

jurisdiction to entErtain this Application pursuant to O.C.G.A.

§§ 5-6-35(a) (1) and 21-2-5(e), as well as pursuant to the 1983

Constitution of the State of Georgia, Article VI, Section VI,

Paragraph II, as this case draws into question the

constitutionality of O.C.G.A. § 21-2-5 as applied to Presidential

Preference Primarie~:, and as this case involves the construction

of the ~natural borr Citizen" presidential eligibility

requirement of Article II, Section I, Clause 5 of the United

States Constitution, and this case thus falls within this Court's

exclusive appellate jurisdiction.

3. JUDGMENT 1l,PPEALEDAND DATE OF ENTRY. The Superior

Court of Fulton County's ~Order Granting Respondent Barack

Obama's Motion to Dismiss" was entered and filed on March 2,

2012.

4. STATEMENT OF FACTS. On or before October 31, 2011,

Respondent Barack Obama submitted a letter to the Executive

Committee of the Dem0cratic Party of Georgia seeking to be listed

on the Georgia Democratic Presidential Preference Primary Ballot.

Consequently, on Nov2mber 1, 2011, Georgia Democratic Party

Chairman Mike Berlon submitted, pursuant to O.C.G.A. § 21-2-193,

the name of Respondent Obama to the Georgia Secretary of State's

Office as a candidat2 to be listed on the Georgia Democratic

Presidential Prefere~ce Primary Ballot.

Page -3-



Thereafter, pursuant to O.C.G.A. § 21-2-5(b), Applicant

Powell, a residentJf Gwinnett County, Georgia and a registered

voter in the State ()f Georgia and an elector eligible to vote for

candidates for the IJresidency of the United States, timely filed

with the Georgia Sec:retary of State a written challenge to the

qualifications of REspondent to seek and hold the Office of the

Presidency of the U~ited States. Applicant contended that

Respondent does not meet the "natural born Citizen" eligibility

requirement of Article II, Section I, Clause 5 of the United

States Constitution.

As prescribed b'{ O.C.G.A. § 21-2-5(b), the Office of the

Secretary of State referred Applicant's challenge to an

administrative law judge (hereinafter "ALJ") of the Office of

State Administrative Hearings (hereinafter "OSAH"). Thereafter,

pursuant to proper notice to all parties, the ALJ conducted a

hearing on January 26, 2012.

Applicant was pr"esent at trial and submitted into the

record, through coun~el, evidence and testimony pertaining to the

issues raised by his challenge. However, despite being timely

served with a Notice to Produce by Applicant's counsel requiring

Respondent to personally appear for trial and to bring with him

certain documents for use as evidence by Applicant at trial,

Respondent failed to appear for trial on January 26, 2012.

Likewise, Respondent's attorney also failed to appear for trial.

Page -4-



No evidence or testimony whatsoever was introduced into the

record by or on beh~lf of Respondent at trial. The failure of

Respondent and his attorney to appear for trial on January 26,

2012 was knowing and intentional, as demonstrated by a January

25, 2012 letter written by Respondent's attorney to Georgia

Secretary of State Erian P. Kemp (Exhibit "F").

Applicant's evidence at trial established that Respondent's

father, Barack Hussein Obama, was born in Kenya and was a subject

of Great Britain. Additionally, Applicant established that

Respondent's aforesaid father, Barack Hussein Obama, was not a

citizen of the United States as of the date of birth of

Respondent in 1961 or at any other time whatsoever.

Nevertheless, 00 February 3, 2012, the ALJ issued an initial

Decision finding Res?ondent eligible as a candidate for the

presidential primary election. Pursuant to O.C.G.A. § 21-2-5(b),

the ALJ's Decision was reported to the Secretary of State.

Subsequently on FebrJary 7, 2012, pursuant to O.C.G.A. § 21-2

5(c), Georgia Secretary of State Brian P. Kemp issued a Final

Decision adopting th,~ initial Decision of the ALJ and denying

Applicant' s challengl~.

On February 15, 2012, pursuant to O.C.G.A. § 21-2-5(e),

Applicant timely fil(:;din the Superior Court of Fulton County a

"Peti tion For Judicia.l Review" appealing and seeking judicial

review of the Secretilry of State's Final Decision (Exhibit "B")

Page -5-



Applicant's Petition also requested that the Court grant an

expedited hearing ani review of the case due to the fact that the

Georgia Presidential Preference Primary Election was scheduled to

take place less than three (3) weeks later, on March 6, 2012. In

a further effort to ·Jbtain some action by the Court in advance of

the election date, AJplicant then filed, on February 22, 2012, a

"Motion For Expedite,j Review or, Alternatively, For Stay of

Decision of Secretary of State and For Postponement of

Presidential Prefere~ce Primary Election" (Exhibit "C")

On February 27, 2012, counsel for Respondent served a

"Motion to Dismiss" .3ndBrief in Support thereof in which

Respondent argued th.3t the Court lacked jurisdiction over the

subject matter; that there was a failure of service of process;

and that Applicant's Petition failed to state a claim upon which

relief could be granted (Exhibit "0").

On March 1, 201.2, the Court notified counsel for Applicant

by email that, if ApJlicant wished to respond to Respondent's

"Motion to Dismiss," counsel would have until the following

mornlng, March 2, 2012 at 9:30 a.m., to do so (Exhibit "E," pp.

16-17). Counsel for Applicant thereafter submitted to the Court,

by the aforesaid dea,iline, Applicant's "Response to Respondent's

Motion to Dismiss" (~xhibit "E," p. 14), and the Court

acknowledged receipt of same in an email sent at 8:30 a.m. on the

morning of March 2, 2012 (Exhibit "E," p. 15). Just over two and

Page -6-



Respondent's mother was a citizen of the United States at the

time of Respondent's birth.

6. The Superior Court erred in failing to reverse the

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

ALJ's and the Secretary of State's error in finding that

Respondent qualifies as a "natural born Citizen" pursuant to

Article II of the United States Constitution, despite the fact

that Respondent's father was not a United States citizen at the

time of Respondent's birth.

PART THREE

ARGm!IENT AND CITATION OF AUTHORITY

Applicant would note at the outset that this Court's Rule

34, concerning the standard for granting discretionary appeals,

provides in pertinent part that "[a]n application for leave to

appeal a final judgment [pursuant to] O.C.G.A. § 5-6-35 shall be

granted," among other instances, when " [r]eversible error appears

to exist" or when "[t]he establishment of a precedent is

desirable."

In the instant case, as set forth hereinbelow, the Superior

Court, as well as the ALJ and the Secretary of State, made a

number of reversible errors. Additionally, as this case raises

significant issues regarding the State of Georgia's authority to

screen the qualifications of presidential contenders, and as

these issues are certainly capable of being raised with regard to

Page -8-



future presidential candidacies, the establishment of a precedent

IS both necessary and desirable.

1. The Superior Court erred in holding that O.C.G.A. § 21-

2-5 does not apply in the context of a challenge to the

qualifications of a candidate in the Presidential Preference

Primary.

The Superior Court held that a.C.G.A. § 21-2-5, the Georgia

qualifications chal~_enge statute, does not apply to the

Presidential PreferE:nce Primary, as the Presidential Preference

Primary apportions delegates, but does not result in the

nomination or election of a presidential candidate. The Court

also found that Res:pondent is not yet a "candidate" for the

Presidential Electic1n, and that the Presidential Preference

Primary is not an "E!lection" within the meaning of the Georgia

Election Code. In this connection, Respondent contended before

the Superior Court t.hat the definition of "election" found in

a.C.G.A. § 21-2-2(5) includes general or special elections, but

not a primary or special primary unless the context in which

"election" is used ~clearly requires" the inclusion of a primary

or special primary.

The Superior Court and Respondent overlooked, however, the

provisions of a.C.G.A. § 21-2-15 inasmuch as

This chapter shall apply to any general or

special el.ection in this state to fill any

federal, ~tate, county, or municipal office,

Page -9-



to any general or special primary to nominate

candidate,) for any such office, and to any

federal, state, county, or municipal election

or primar; for any other purpose whatsoever,

unless otherwise provided.

Also, the qual:Lfications challenge statute, O.C.G.A. § 21-2-

5, grants a right t()challenge the qualifications of "any

candidate," regardl(~ss of the specific type of election. Despite

the Superior Court'~3 finding to the contrary, contestants in a

Presidential Preference Primary are specifically designated by

statute as "candidates." O.C.G.A. § 21-2-193.

Respondent alscl argued in the Court below that a "candidate"

must be "certified by the state executive committee of a

political party" or must submit "a notice of candidacy," see

O.C.G.A. § 2l-2-5(a), and that neither of such conditions have

taken place as to Respondent. O.C.G.A. § 21-2-5 (b) provides,

however, that a challenge of the qualifications of any candidate

may be made "at any time prior to the election of such

candidate," and Resrondent's political party would presumably be

filing a certification of his nomination prior to the general

election. Addition~lly, Applicant submits that "certified" and

"notice of candidacy" are not specifically defined terms in the

Georgia Election Code, and one could argue that the list of

Presidential Preference Primary candidates submitted by

Respondent's political party pursuant to O.C.G.A. § 21-2-193

constituted a "certification" or a "notice of candidacy."

Page -10-



Accordingly, it is apparent that the Georgia qualifications

challenge statute dces, in fact, apply to the Presidential

Preference Primary; that the Superior Court did properly have

subject-matter juri~:diction of Applicant's Petition; and that the

Superior Court committed reversible error in holding otherwise.

2. The Superior Court erred in holding O.C.G.A. § 21-2-5

unconstitutional as applied to a challenge to the qualifications

of a candidate in tbe Presidential Preference Primary.

The Superior Ccurt also granted dismissal for lack of

subject~matter jurisdiction based upon Respondent's argument that

First (and Fourteenth) Amendment associational rights of a

political party give the party the exclusive right to determine

whom to include on its Presidential Preference Primary ballot.

While Respondert contended that First Amendment

associational rights of a party are "most often litigated" in the

situation in which a party refuses to permit a name on a primary

ballot (citing Democratic Part V of u.S. v. Wisconsin, 50 U.S.

107, 101 S. Ct. 101C, 67 L. Ed. 2d 82 (1981); Duke v. Cleland,

954 F. 2d 1526 (lltt Cir. 1992)), he also claimed that "the

reverse is also true" in that the party has the unchecked right

to require certain rames on its primary ballot. Respondent,

however, cited no a~thority for the latter proposition.

The Superior Court essentially adopted Respondent's

argument, as the Co~rt held that the Secretary of State may not

Page -11-



3. The Superior Court erred in holding that Applicant

failed to perfect service and in dismissing Applicant's action

based upon a finding- of failure to perfect service.

The Superior Court also ruled that, even if the Court

properly had jurisdiction pursuant to O.C.G.A. § 21-2-5,

Applicant "failed entirely to perfect personal serVlce upon

Respondent(s) as required by O.C.G.A. § 21-2-5(e) and O.C.G.A. §

9-11-4. The Superior Court apparently believed Applicant's case

to be subject to dismissal for the reason argued by Respondent

that "service of the summons and complaint was made by mailing to

[R]espondent's attorney." Respondent claimed that personal

service or a waiver thereof was required for a viable suit.

However, the case of Douqlas Asphalt Co. v. Georqia Public

Service Commission, 263 Ga. App. 711, 589 S.E. 2d 292 (2003) lS

controlling. In Douqlas Asphalt, the Court held that in an

appeal of an administrative decision of a state agency or other

tribunal, personal ~;ervice of the petition for judicial review

upon the agency was not required, and service by mail was proper

to preserve the jurisdiction of the court. The Court

specifically noted that service of appeals from an agency

decision is governec. by O.C.G.A. § 5-3-21, which provides In

pertinent part that "[a] copy of the notice of appeal shall be

served on all partiE~s in the same manner prescribed by Code

Page -13-



Section 5-6-32." O.C.G.A. § 5-6-32(a), in turn, provides In

pertinent part that

Whenever under this article service or the

giving of any notice is required or permitted

to be 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 papershereunder and service of motions for new

trial, motions in arrest, motions for

judgment notwithstanding the verdict, and all

other similar motions, orders, and

proceedings may be made by the attorney or

party filing the notice or paper, in person

or by mail, and proof thereof shown by

acknowledgment of the attorney or party

served, or by certificate of the attorney,

party, or other person perfecting service.

Therefore, in the instant case, service of the Petition upon

Respondent Obama by mailing same to his attorney was in

accordance with Georgia law.

Applicant further notes, however, that even if the service

by mail were for any reason not considered valid, O.C.G.A. § 5-3-

2l(b) states in pertinent part that "[f]ailure to perfect service

on any party shall rot work dismissal, but the superior court

shall grant continuances and enter such other orders as may be

necessary to permit a just and expeditious determination of the

appeal." Dismissal based upon the issue of service was therefore

inappropriate, and the Superior Court erred to the extent that

its dismissal was bcsed upon failure to perfect service.

Page -14-




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

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

the proper placement, of the burden of proof and in failing to

apply such determina,tion in ruling uponApplicant's challenge.

In dismissing Applicant's Petition For Judicial Review, the

Superior Court failed to address the ALJ's complete failure to

make a determinatior, as to the proper placement of the burden of

proof as between the parties, as well as the ALJ's failure to

apply the burden of proof to his factual and legal conclusions.

On January 19, 2012, Applicant filed a "Motion For

Determination of Placement of Burden of Proof" in which he sought

an order, pursuant to Havnes v. Wells, 273 Ga. 106, 108-109, 538

S.E. 2d 430, 433 (2C:00), requiring Respondent to affirmatively

establish his eligibility for office. Not only did the ALJ not

rule on Applicant's motion in advance of trial, as was requested

by Applicant, but tt.e judge never even addressed or resolved the

motion in his final ruling.

OSAH Rule 616-~-2-.07(1) provides that, with certain

exceptions not appl~_cable herein, "[t]he agency shall bear the

burden of proof in 2111 matters." Further, OSAH Rule 616-1-2

.07(2) states that, "[p]rior to the commencement of the hearing,

the Administrative Law Judge may determine that law or justice

requires a different placement of the burden of proof."

Page -15-



The challenge to Respondent's qualifications herein was not

initiated by the applicable agency, the Office of the Secretary

of State. Rather, the challenge was commenced by Applicant,

pursuant to O.C.G.A. § 21-2-5(b), "by filing a written complaint

with the Secretary of State .... " Upon the filing of Applicant's

challenge, the Secretary of State was required as a matter of

procedure, also pursuant to O.C.G.A. § 21-2-5(b), to refer the

challenge to the OSAH for a hearing.

Prior to the trial before the ALJ, the "agency," i.e. the

Office of the Secretary of State, made no determination of

candidate qualifications; issued no decision; and was not a party

to the challenge, and it would have therefore been inappropriate

for the agency to bear the burden of proof as initially suggested

by OSAH Rule 616-1-2-.07(1). The burden of proof therefore must

have been placed either with Applicant (i.e., to prove Respondent

ineligible) or with Respondent (i.e., to prove himself eligible)

However, under HavnE~, 273 Ga. at 108-109, Applicant was not

required, and should not be required, "to disprove anything

regarding [Respondent Obama's] eligibility to run for office .... "

rd.

The significance of the ALJ's failure to rule on the burden

of proof is immediately apparent. Respondent and his lawyer

failed to attend trj.al and failed to offer any evidence, and such

failures were intent:ional, as shown by Respondent's counsel's

Page -16-



letter of January 25, 2012 (Exhibit ~F"). If Respondent did, as

Applicant contends, bear the burden of proof at trial, then

Respondent can in no way be said to have satisfied his burden,

and Applicant was entitled to judgment. Thus, the failure of the

Superior Court to reverse the Secretary of State, and the ALJ, on

the basis of their failure to address the burden of proof is

reversible error.


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

ALJ's and the Secre1:~ary of State's errors in finding as "fact"

that Respondent was born in the United States and that

Respondent's mother was a citizen of the United States at the

time of Respondent' ~:~irth.

The ALJ's rulirlg, and consequently the Secretary of State's

ruling, on Applicant's challenge to Respondent's qualifications

relied upon certain alleged ~facts" which the ALJ said he

~considered." Spec:Lfically, the ALJ found as ~fact": 1) that

Respondent Obama was born in the United States; and 2) that

Respondent Obama's rnother was a citizen of the United States at

the time of Respond':;nt' birth.

However, as se: forth hereinabove, Respondent carried the

burden of proving his eligibility for office. Inasmuch as

Respondent and his ~ttorney did not appear for trial and did not

offer any evidence whatsoever, and inasmuch as the ~natural born

Page -17-



Citizen" requirement for presidential eligibility mandates an

examination of Respondent's place of birth and the citizenship of

both of Respondent's parents at the time of Respondent's birth

(as is explained hereinbelow), Respondent failed to carry his

burden of proof as to his eligibility, and the above ~facts"

found by the ALJ were legally unsupported. The Superior Court's

failure to reverse the Secretary of State, and the ALJ, with

regard to these findings of ~fact" is reversible error.

6. The Superi.or Court erred in failing to reverse the

Final Decision of tb.e Secretary of State on the basis of the

ALJ's and the Secret:.aryof State's error in finding that

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

Article II of the United States Constitution, despite the fact

that Respondent's fc:Ltherwas not a United States citizen at the

time of Respondent'B birth.

The ALJ's (and subsequently the Secretary of State's) ruling

was grounded in the ALJ's adoption of the non-binding reasonlng

of the Indiana Court of Appeals in Ankenv v. Governor of Indiana,

916 N.E. 2d 678 (20()9), with regard to the ALJ's finding that a

person qualifies as a natural born citizen if he was born in the

United States becau~3e he became a United States citizen at birth.

Although, as p()inted out hereinabove, there was absolutely

no evidence whatsOe"ler submitted by Respondent at trial to carry

his burden of proof and establish Respondent's place of birth,

Page -18-



the ALJ's ruling that a person's birth in the United States

automatically confers the status of "natural born Citizen"

pursuant to Article II of the United States Constitution is

unfounded; is an incorrect statement of the applicable law; and

is contrary to the ruling of the United States Supreme Court in

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

162 (1875).

Minor is bindirg authority for the proposition that the

Article II phrase "ratural born Citizen" refers to a person born

in the United State~: to two (2) parents who were then (at the

time of the child's birth) themselves United States citizens.

Because, as Applicant's undisputed evidence at trial

demonstrated, Respordent Obama's father was not a United States

citizen at the time of Respondent's birth, Respondent does not

meet the Article II "natural born Citizen" requirement for the

presidency, and the ALJ and the Secretary of State committed

error in finding ottlerwise. The Superior Court thus likewise

committed reversible error in failing to reverse the ALJ and the

Secretary of State on this issue.1

CONCLUSION

For the above ~lnd foregoing reasons, Applicant respectfully

requests that the Supreme Court grant this Application For

lThis issue will be more fully briefed by Applicant upon the granting ofthis Application

For Discretionary Appeal.

Page -19-



Discretionary Appeal and review and reverse the decision of the

Superior Court in this case.

Respectfully submitted, this 12th day of March, 2012.


201 Albany AvenueP.O. Box 1361


(912) 283-3820

Page -20-



CERTIFICATE OF SERVICE

I, J. Mark Hatfield, Attorney for Applicant, do hereby

certify that I have this day served the foregoing Application For

Discretionary Appeal upon:

Mr. 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


by placing a copy of same in the United States Mail in a properly

addressed envelope ~rith sufficient postage affixed thereto in

order to insure proper delivery, and by emailing same to Mr.

Jablonski at [email protected], and by emailing same

to Secretary Kemp at v:[email protected]. crO'I.

This 12th day of March, 2012.



Waycross, Georgia 31502(912) 283-3820



Mark Hatfield

From:Sent:

To:

Subject:

Attachments:

~~.;, ,~,,~

DOC006.pdf (563

KB)

White, Connie [[email protected]]Friday, March 02,2012 11:04 AM

david. [email protected]; codyj [email protected]; [email protected];

van@liberty,egalfoundation.org; [email protected]; [email protected];[email protected]; [email protected]

Order Granting Respondent Barack Obama's Motion(s) to Dismiss-2012cv211398,

2012cv211~:27, 2012cv211528, 2012cv211537

DOC006.pdf

Hello,

Please find attached a stamp filed copy of the Order Granting Respondent Barack Obama's

Motion(s) to Dismiss 2012cv211398, 2012cv211527, 2012cv211528, 2012cv211537 from Judge

Wright's office.

Thank you,

Connie White

PLAINTIFF'SEXHIBIT

,/J \l

11

1



*

CODY

***

* *CIVIL ACTION

*FILE NO. 2012 *

**

*

AIN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

©@~y(\FILED IN OFFICE

[ Ie"AR 2.1011 _

+EPUTY CLERK SUPERIOR COURT

N COUNTY. GA ~

~

CARL SWENSSON

**

** *

CIVIL ACTION

*

FILE NO. 2012CV211527*

**

*

KEVIN RICHARD POWELL,

*

*

* *CIVIL ACTION

*

FILE NO. 2012CV211528*

**

*

Farrar; et aI. v. Obama, et al: Civil Action No. 2012CV211398

Swensson v. Obama: CivilAction No. 2012CV211527

Powell v. Obama: Civil Action No. 2012CV211528

Welden v. Obama: Civil Action No. 2012CV211537

ORDER GRANTING MOTION{S) TO DISMISS Page 1



DAVID P. WELDEN

**

** *

CIVIL ACTION

*

FILE NO. 2012CV211537*

**

*

ORDER GRANTING l:tESPONDENT BARACK OBAMA'S MOTION(S) TO DISM1SS

The above-captiolli:.ldactions are before the Court on the Petition(s) for Judicial Review

of Petitioners David Farral', et aI., Carl Swensson, Kevin Richard Powell, and David P. Welden,

which were filed in this Court on February 13, 2012 and February 15, 2012, respectively.

Although initially a.ssigned to four (4) different Superior Court Judges, the matters were

transferred to the Honorable Chief Judge Cynthia D. Wright, to whom the flIst-filed case was

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

an appeal of the same deci1;ionissued on February 3,2012 by Administrative Law Judge Michael

M. Malihi in the Office of State Administrative Hearings and thereafter adopted by the Secretary

of State.

Presently before the Court is the Motion to Dismiss of Respondent Barack Obama, filed

in each of the above-refenmced actions on February 27, 2012. The Motion(s) to Dismiss are

identical in form and substance and will, therefore, be addressed by the Court in one

consolidated Order to be applied in each case. Now, having considered the Motion(s) to

Dismiss, the other pleading!;of record, and applicable Georgia law, the Court fmds as follows:

Petitioners filed their AppeallPetition for Judicial Review of the Secretary of State's

decision in this Court pursu.mt to O.C.G.A. § 21-2-5(e), which provides as follows:

Farrar, et al. v. Ohama, et al: CivilAction No. 2012CV211398

Swensson V. Obama: CivilActlon No. 2012CV211527

Powell v. Obama: CivilAction No. 2012CV211528

Welden v. Oboma: CivilAction No. 2012CV211537

ORDER GRANTING MOTION(S) TO DISMISS Page 2



Page3

The elector filing the challenge or the candidate challenged shall

have the ri ght 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 Df 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 service of the petition, the Secretary of State shall transmit the

original or a certified copy of the entire record of the proceedings

under revi,;w to the reviewing court. The review shall be

conducted by the court without a jury and shall be confined to therecord.

Petitioners allege that Respondent Barack Obama is not a "natural born citizen"l and,

thus, is not qualified for candidacy in Georgia's 2012 Presidential Primary. Despite its

application in the court beilow, this Court does not believe that O.c.G.A. § 21-2-5 applies in this

case because the challenge at issue involves the Presidential Preference Primary, which by its

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

for nomination." O.C.G.l~. § 21-2-191. The Presidential Preference Primary apportions

delegates, but neither elec ts nor nominates candidates for the Presidency. Therefore, because

Respondent Barack Obama is not yet a "candidate" for the Presidential election in question and

because the Presidential Preference Primary is not an "election" within the meaning ofa.C.G.A.

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

Moreover, it is weB established in Georgia as elsewhere in the United States that voters

vote on "presidential electors," rather than voting directly for a candidate, when voting for the

Office of President of the United States. O.C.G.A. § 21-2-172. The political parties' candidates

for President are determined by convention of the political party. See O.C.G.A. §§ 21-2-191 to

IPetitioners claim is based, in pa:i, on a contention that at the time of his birth, Respondent's father was not acitizen ofthe United States.

Farrar, et al. v. Ohama, et al: CivilAction No. 2012CV211398

Swensson v. Ohama: Civil Action No. 2012CV211527

Powell v. abama: CivilAction No. 2012CV211528

Welden v. Ohama: CivilAction No. 2012CV211537

ORDER GRANTING MOTIONI:S) TO DISMISS



SO ORDERED this the 2nd day of March, 2012.

c--~~\~YNTHIA D. WRIGHT, ChIef Judg~

Fulton County Superior CourtAtlanta Judicial Circuit

Copies to:

Via Email and U.S. Mail::

David Farrar, Pro Se

2059 Cavesprong Road

Cedartown, Georgia 30125

david. [email protected]

Cody Robert Judy, Pro Se

3031 Ogden Avenue, Suite #2

Ogden, Utah 84403

[email protected]

J. Mark Hatfield, Esq.

Hatfield & Hatfield, P.c.



[email protected]

Van R. Irion, Esq.

Liberty Legal Foundation

9040 Executive Park Drive: Suite 200

Knoxville, TN 37923

van(@'libertvlegalfoundatioll.org

Michael K. Jablonski, Esq.

2221-D Peachtree Road, NE


michael. iablonski@comca~::t.net

Farrar, et al. v. abama, et al: ':::ivilAction No. 2012CV211398

Swensson v. Ohama: CivilAction No. 2012CV211527

Powell v. ahama: Civil Action No. 2012CV211528

Welden v. ahoma: Civil Actio 11 No. 2012CV211537

ORDER GRANTING MOTION(S) TO DISMISS Page 5



Cam-Anh Le, Esq.

Vincent Robert Russo, Jr., Esq.

Office ofthe Georgia Secretary of StateExecutive Office

214 State Capitol


[email protected]

vrusso(aJ,sos. ga.gov

David P. Welden, Pro Se

5530 Wright Road

Powder Springs, Georgia 30127

dpwelden(W,grnail.com

Farrar, etal. v. Ohama, et al: Civil Action No. 2012CV211398

Swensson v. Ohama: Civil Action No. 2012CV211527

Powell v. Ohama: Civil Action No. 2012CV211528

Welden v. Ohama: Civil Action No. 2012CV211537

ORDER GRANTING MOTIONC::) TO DISMISS Page 6



Court

/ill' Su periorD State

Plaintiff(s)POWELL, KEVIN RICHARD Defendant(s)OBAMA, BARACK

Last Firstiddle I. Suffix Prefixaidenastirstiddle I. Suffix Prefixaidenirstiddle I. Suffix Prefixaidenastirstiddle I. Suffix Prefixaidenirstiddle I. Suffix Prefixaidenastirstiddle I. Suffix Prefixaidenirstiddle I. Suffix Prefixaidenastirstiddle I. Suffix Prefixaiden No. of Defendants 1Pro Se

Last

Bar # 337509

First Middle I. Suffix

Check Primary Type (Che<:konly ONE)

o Contract! Account

o Wills/Estate

o Real Property

o Dispossessory/Distress

o Personal Property

o Equity

o Habeas Corpus

~ Appeals, Reviews

D Post Judgment Garnishment, Attachment, orOther Relief

o Non-Domestic Contempt

o Tort (If tort, fill in right column)

o Other General Civil Specif)' _, _

If Tort is Case Type:(Check no more than TWO)

D Auto Accident

D Premises LiabilityMedical MalpracticeOther Professional NegligenceD Product LiabilityOther SpecifY

Are Punitive Damages Pleaded? DYes D No

PLAINTIFF'Sb EXHIBIT

j 1'15 \\



IN THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA

136 PRYOR STREET, ROOM C-I03, ATLANT A, GEORGIA 30303

SUMMONS . I . 'DEVIN RICHARD POWELL ; C ••• No" 201) C~'1)I :52.~

Plaintiff,VS.

BARACK OBAMA

Defendant

TO THE ABOVE NAMED DEFENDANT(S):

Your are hereby summoned alld required to file with the Clerk of said Court and serve upon plaintiffs

attorney, whose name and addl"ess is: J. MARK HATFIELD

HATFIELD & HATFIELD, P.C.201 ALBANY AVENUE

P.O. BOX 1361

WAYCROSS, GEORGIA 31502

(912) 283-3820

An answer to the complaint ,,vhich 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 TAKEN AGAINST YOU FOR THE RELIEF DEMANDED IN THE

COMPLAINTdhis --)_,=.2_----.--

To defendant upon whom this petition is served:

This copy of complaint and summons was served upon you , 20 _

Deputy Sherriff

Ins truct ions : At tach addendum shee t for addit ional part ie s i fneeded, make notat ion on this shee t i f addendum isused



IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

KEVIN RICHARD POWELl:.,

Petitioner

v.

BARACK OBAMA,

Respondent

*

*

*

*

*

CIVIL ACTIOr: ~ I.. J '1)ILE No.2 )/2C/Y21 );32 ~

P]~TITION FOR .JUDICIAL REVIEW

Now comes Petitioner Kevin Richard Powell, by and through

undersigned counsel, and files this Petition For Judicial Review

against Respondent Barack Obama as follows:

1.

This action is an appeal of a Final Decision of Georgia

Secretary of State Brian P. Kemp denying Petitioner Kevin Richard

Powell's challenge to the qualifications of Respondent Barack

Obama, a presidential candidate, to seek and hold the Office of

the President of the United States, and finding ~espondent Obama

eligible as a candidate for the presidential primary election.

2.

This Court has jurisdiction of this appeal pursuant to

O.C.G.A. § 21-2-5(e).

3.

Petitioner Kevin Richard Powell is a natural person residing

in Gwinnett County, Georgia. He is a registered voter in the

Page -1-



State of Georgia, and he is an elector eligible to vote for

candidates for the i?residency of the United States, including

presidential candida.te Barack Obama, the Respondent herein.

4 •

Respondent Obaln.a,on or before October 31, 2011, submitted a

letter to the Executive Committee of the Democratic Party of

Georgia seeking to be listed on the Georgia Democratic

Presidential Preference Primary Ballot. Consequently, on

November 1, 2011, Georgia Democratic Party Chairman Mike Berlon

submitted, pursuant to O.C.G.A. § 21-2-193, the name of

Respondent to the GE:~orgiaSecretary of State's Office as a

candidate to be list,ed on the Georgia Democratic Presidential

Preference Primary Ballot.

5 .

Pursuant to O.C.G.A. § 21-2-5(b), Petitioner timely filed

with the Georgia Secretary of State a written challenge to the

qualifications of Respondent to seek and hold the Office of the

Presidency of the United States. Petitioner's challenge

contended that Respondent does not meet the "natural born

Citizen" eligibility requirement of Article II, Section I, Clause

5 of the United States Constitution.

6 .

Also pursuant to O.C.G.A. § 21-2-5(b), the Office of the

Secretary of State thereafter referred Petitioner's challenge for

Page -2-



a hearing before an administrative law judge of the Office of

State Administrative Hearings.

7 •

Pursuant to proper notice to the parties, a hearing was

conducted on January 26, 2012 before Administrative Law Judge

Michael M. Malihi. Petitioner was present at trial and submitted

into the record, through counsel, evidence and testimony

pertaining to the iE:sues raised by his challenge. Respondent and

his attorney, however, did not appear for trial and failed to

submit any evidence or testimony whatsoever.

8.

On February 3, 2012, the administrative law judge issued an

initial Decision, a copy of which is attached hereto as Exhibit

"A," finding Respondent eligible as a candidate for the

presidential primary election. Pursuant to O.C.G.A. § 21-2-5(b),

the administrative law judge's Decision was reported to the

Secretary of State.

9.

On February 7, 2012, pursuant to O.C.G.A. § 21-2-5(c),

Georgia Secretary of State Brian P. Kemp issued a Final Decision,

a copy of which is attached hereto as Exhibit "B," adopting the

initial Decision of the administrative law judge and denying

Petitioner's challen'je.

Page -3-



10.

Pursuant to O.C.G.A. § 21-2-5(e), Petitioner now appeals and

seeks judicial revil~w of the Secretary of State's Final Decision

in this case, and fllrther seeks a reversal of that Final

Decision, for the rE!aSOn that substantial rights of the

Petitioner have beerl prejudiced because the findings, inferences,

conclusions, and decisions of the Secretary of State are:

(a) In violati.on of the Constitution and laws of this

state;

(b) In excess of the statutory authority of the Secretary

of State;

(c) Made upon unlawful procedures;

(d) Affected by other errors of law;

(e) Clearly erroneous in view of the reliable, probative,

and substantial evidence on the whole record; and

(f) Arbitrary ~nd capricious and characterized by an abuse

of discretion and a:learly unwarranted exercise of discretion.

11.

In particular, Petitioner would enumerate the following

specific grounds for review of the Secretary of State's Final

Decision in this case:

(a) The admini:5trative law judge, and consequently the

Secretary of State aciopting the initial Decision of said judge,

erred in issuing a s::_ngleruling applicable to the cases of

Page -4-



Page -5-



erred in failing to make a determination as to the proper

placement of the bu~den of proof and in failing to apply the

burden of proof in~eaching factual and legal conclusions in

Petitioner's case, despite the fact that Petitioner specifically

filed a pre-trial "l1otion For Determination of Placement of

Burden of Proof";

(e) The admin:_strative law judge, and consequently the

Secretary of State adopting the initial Decision of said judge,

erred in failing to find Respondent's deliberate failure to

appear for trial an event of default and in failing to sustain

Petitioner's challerlge to Respondent's qualifications on that

independent basis;

(f) The administrative law judge, and consequently the

Secretary of State adopting the initial Decision of said jud~e,

erred in adopting the reasoning of the Indiana Court of Appeals

in Ankenv v. Governor of Indiana and in finding that a person

automatically qualii:ies as a "natural born Citizen," pursuant to

Article II of the United States Constitution, by merely being

born in the United States, without regard to the citizenship of

his parents;

(g) The administrative law judge, and consequently the


erred in failing to properly construe the ruling of the United

States Supreme Court in Minor v. Hapoersett;

Page -6-



(h) The administrative law judge, and consequently the


erred in finding that Respondent qualifies as a "natural born

Citizen" pursuant to Article II of the United States

Consti tution, despi':e the fact that Respondent's father was not a

United States citizen at the time of Respondent's birth; and

(i) The admin:,-stratie law judge, and consequently the

Secretary of State ildopting the initial Decision of said judge,

erred in failing at Petitioner's request to certify to this

Court, for a determination of appropriate action including a

finding of contempt,. the facts of the contemptuous behavior of

Respondent (and Respondent's counsel) in knowingly,

intentionally, and deliberately failing to comply with

Petitioner's Notice to Produce served upon Respondent.

12.

Petitioner resfectfully requests that this Court grant an

expedited hearing and review of this Petition due to the fact

that the Georgia Presidential Preference Primary Election is

scheduled to take place on March 6, 2012, less than three (3)

weeks hence.

13.

Pursuant to O.C.G.A. § 21-2-5(e)~ Petitioner further

respectfully requests that this Court order a stay of the Final

Decision of the Secretary of State finding Respondent eligible to

Page -7-



be included on the::lallot in Georgia as a candidate for the

presidential primary election pending a final judgment of this

Court reviewing said Final Decision.

14.

This Petition is timely filed within ten (10) days after the

entry of the Final Decision by the Secretary of State.

15.

Pursuant to O.(:.G.A. § 21-2-5(e), the Secretary of State, as

soon as possible after service of this Petition, is required to

transmit to this Court the original or a certified copy of the

entire record of the proceedings under review.

WHEREFORE, Petj.tioner Kevin Richard Powell respectfully

requests that this Court:

(1) Conduct a hearing and review the record in this case on

an expedited basis;

(2) Grant Petitioner a stay of the Final Decision of the

Secretary of State finding Respondent eligible to be included on

the ballot in Georgia as a candidate for the presidential primary

election pending a final judgment of this Court;

(3) Issue an ord~r reversing the Final Decision of the

Secretary of State, finding that Respondent does not meet the

Article II "natural born Citizen" requirement for the presidency,

removing Respondent's name from the presidential ballot in

Georgia, and adjudging Respondent in contempt of court for his

Page -8-



deliberate failure to comply with Petitioner's Notice to Produce

in the administrative proceedings; and

(4) Grant such other and further relief as the Court may

deem just and prope.r.

This 15th day of February, 2012.



Waycross, Georgia 3J.502

(912) 283-3820

Page -9-



OFFICE OF STATE ADMINISTRATIVE HEARINGS

STATE OF GEORGIA

DA VID FARRAR, LEAH LAX, CODY JUDY,

THOMAS MALAREN, LAURIE ROTH,

Plaintiffs,

v.

BARACK OBAMA,

Defendant.

DAVID P. WELDEN,

Plaintiff,

v.

BARACK OBAMA,

Defendant.

CARL SWENSSON,

Plaintiff,

v.

BARACK OBAMA,

Defendant.


Plaintiff,

v.

BARACK OBAMA,

Defendant.

Docket Number: OSAH-SECST ATE-CE

1215136-60-MALIHI

Counsel for Plaintiffs: Orly Taitz

Counsel for Defendant: Michael Jablonski

Docket Number: OSAH-SECST ATE-CE1215137-60-MALIHI

Counsel for Plaintiff: Van R. Irion


Docket Number: OSAH-SECSTATE-CE

1216218-60-MALIHI

Counsel for Plaintiff: J. Mark Hatfield


Docket Number: OSAH-SECST ATE-CE

1216823-60-MALIHI

Counsel for Plaintiff: J. Mark Hatfield


'.,PLAINTIFF'S

j,',~~~!BIT "



DECISION I

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

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

Georgia law mandates thd candidates meet constitutional and statutory requirements for

the office that they seek. O.C.G.A. § 21-2-5(a). Mr. Obama is a candidate for federal

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

therefore must, under Georgia Code Section 21-2-5, meet the constitutional and statutory

qualifications for holding the Office of the President of the United States. ld. The United

States Constitution requin;:s that a President be a "natural bom [c]itizen." U.S. Const. art.

II, § 1, d. 5.

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

challenges to this Court fi)r 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,

Ma1aren, and Roth and their counsel Orly Taitz, Plaintiffs Carl Swensson and Kevin

Richard Powell and their counsel J. Mark Hatfield, and Plaintiff David P. Welden and his

counsel Van R. Irion, all appeared and answered the call of the case. However, neither

Defendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, the

Court would enter a defaul t order against a party that fails to participate in any stage of a

proceeding. Ga. Compo R. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the

I This Decision has been consolidated to include the four challenges to President Obama's candidacy filed

by Plaintiffs David farrar , et at., David P. Welden, Carl Swensson, and Kevin Richard Powell. Section I of

this Decision applies only to the case presented by Ms. Tailz on behalf ofMr. 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

Mr. Welden, Mr. Swensson, and Mr. PowelL Section II applies to all Plaintiffs.

2



Defendant's failure to appear, Plaintiffs asked this Court to decide the case on the merits

of their arguments and evi dence. The Court granted Plaintiffs' request.

By deciding this matter on the merits, the Court in no way condones the conduct

or legal scholarship of Defendant's attorney, Mr. Jablonski. This Decision is entirely

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

3



I. Evidentiary Arguments of Plaintiffs Farrar, et al.

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

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

Obama maintains a fraudulently obtained social security number, a Hawaiian birth

certificate that is a computer-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. (Pl.s' Am. Compl. 3.)

At the hearing, Plaintiffs presented the testimony of eight witnesses2 and seven

exhibits in support of the:ir position. (Exs. P-I through P-7.) When considering the

testimony and exhibits, this Court applies the same rules of evidence that apply to civil

nonjury cases in superior court. Ga. Compo R. & Regs. 616-1-2-.18(1)-(9). The weight

to be given to any evidence shall be determined by the Court based upon its reliability

and probative value. Ga. Compo R. & Regs. 616-1-2-.18(10).

The Court finds the testimony of the witnesses, as well as the exhibits tendered, to

be of little, if any, probative value, and thus wholly insufficient to support Plaintiffs'

allegations.3 Ms. Taitz attempted to solicit expert testimony from several of the

witnesses without qualifyirlg or tendering the witnesses as experts. See Stephens v. State,

219 Ga. App. 881 (1996) [the unqualified testimony of the witness was not competent

evidence). For example, two of Plaintiffs' witnesses testified that Mr. Obama's birth

2 Originally, Ms. Taitz indicat~:d to the Court that she would offer the testimony of seven witnesses.

However, during her closing argllment, Ms. Taitz requested to testify. Ms. Taitz was sworn and began her

testimony, but shortly thereafte1'., the Court requested that Ms. Tatiz step-down and submit any furthertestimony in writing.

) The credibility of witnesses i!; within the sole discretion of the trier of fact. In non-jury cases that

discretion lies with the judge. See Mustang Tramp.. Inc. l'. fr. fV Lowe & Sons, Inc., 123 Ga. App. 350,352 (1971).

4



certificate was forged, but neither witness was properly qualified or tendered as an expert

in birth records, forged documents or document manipulation. Another witness testified

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

however, her investigatory methods and her sources of information were not properly

presented, and she was never qualified or tendered as an expert in social security fraud, or

fraud investigations in gl~neral. Accordingly, the Court cannot make an objective

threshold determination oCthese witnesses' testimony without adequate knowledge of

their qualifications. See Rnudsen l'. Dl~Uee-Freeman. Inc., 95 Ga. App. 872 (1957) (for

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

be first proved).

None of the testifying witnesses provided persuasive testimony. Moreover, the

Court finds that none of tile written submissions tendered by Plaintiffs have probative

value. Given the unsatisfaGtoryevidence presented by the Plaintiffs, the Court concludes

that Plaintiffs' claims are not persuasive.

5



II, Application of tht:~"Natural Born Citizen" Requirement

Plaintiffs allege th,1tPresident Barack Obama is not a natural born citizen of the

United States and, therefDre, is not eligible to run in Georgia's presidential primary

election. As indicated supra, the United States Constitution states that ,,[n]o person

except a natural born Citizen ... shall be eligible for the Office of the President ... :4

U.S. Canst. art. II, § I, d. 5.

For the purpose of this section's analysis, the following facts are considered: I)

Mr. Obama was born in the United States; 2) Mr. Obama's mother was a citizen of the

United States at the time of his birth; and 3) Mr. Obama's father was never a United

States citizen. Plaintiffs c{mtendthat, because his father was not aU .S. citizen at the time

of his birth, Mr. Obama is constitutionally ineligible for the Office of the President of the

United States. The Court does not agree.

In 2009, the Indiana Court of Appeals ("Indiana Court") addressed facts and

issues similar to those befi)re this Court. Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct.

App. 2009). In Arkeny, thl~plaintiffs sought to prevent certification of Mr. Obama as an

eligible candidate for president because he is not a natural born citizen. fd. at 681. The

plaintiffs argued, as the Plaintiffs argue before this Court, that "there's a very clear

distinction between a 'citizen of the United States' and a 'natural born Citizen,' and the

difference involves having [two] parents of U.S. citizenship, owing no foreign

allegiance." ld. at 685. The Indiana Court rejected the arb'llmentthat Mr. Obama was

4 The definition of this clause Ilas been the source of much debate. See, e.g., Gordon, Who Can Be

President of the United States: nIl' Unresolved Enigma, 28 Md. L. Rev. 1 (1968); Jill A. Pryor, Note, The

Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resoh-ing Two Hundred Years

orUncertainty, 97 Yale L.J. 881 (1988); Christina S. Lohman, Presidential Eligibility: The Meaning of the

Natural-Born Citizen Clause. .16 GOIlL L. Rev. 349 (2000); William T. Han, Bl~yond Presidential

Eligibility: The Natural Born ClrizenClause as a Source (if Birthright Citizenship,58 Drake L. Rev. 457

(2010).

6



ineligible, stating that children born within the United States are natural born citizens,

regardless of the citizenship of their parents. Id. at 688. This Court finds the decision

and analysis ofArkeny persuasive.

The Indiana Court began its analysis by attempting to ascertain the definition of

"natural born citizen" because the Constitution does not define the term. ld. at 685-86;

See Minor v. Happersett, 88 U.S. 162, 167 (1875) ("The Constitution does not, in words,

say who shall be natural born citizens. Resort must be had elsewhere to ascertain that:');

see also United States v. Wong Kim Ark, 169 U.S. 649 (1898) (noting that the only

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

is not defined in the Constitution).

The Indiana Coulil first explained that the U.S. Supreme Court has read the

Fourteenth Amendment and Article II (natural born citizen provision) in tandem and held

that "new citizens may be born or they may be created by naturalization." ld. at 685

(citing Minor, 88 U.S. at 167); See U.S. Const. amend. XIV, § 1. ("All persons born or

naturalized in the United States and subject to the jurisdiction thereof, are citizens of the

United States .... "). In Minor, the Court observed that:

At common-law, with the nomenclature of which the framers of the

Constitution were f::uniliar, 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 I~hildren 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 tosolve these doubts.

!d. at 167-68. Plaintiffs ask this Court to read the Supreme Court's decision in Minor as

defining natural born citizens as only "children born in a country of parents who were its

7



citizens:' 88 U.S. at 167. However, the Indiana Court explains thatMinor did not define

the term natural born citiizen. In deciding whether a woman was eligible to vote, the

Minor Court merely conduded that children born in a country of parents who were its

citizens would qualifYas 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 tile meaning of the words "citizen of the United States" in the

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

determine whether a ehild born in the United States to parents who, at the time of the

child's birth, were subject~;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 .... " !d. at 686

(citing rVong Kim Ark, 169 U.S. at 653). The Indiana Court determined that the two

provisions "must be interprl~tedin the light ofthe common law, the principles and history

of which were familiarly known to the framers of the constitution." Id. (citing Wong Kim

Ark, 169 U.S. at 654). The Indiana Court agreed that ··[t]he interpretation of the

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

are framed in the language 'Jf the English common law, and are to be read in the light of

its history." !d. (citing Wong Kim Ark, 169U.S. at 655) (internal citation omitted). The

Wong Kim Ark Court extensively examined the common law of England in its decision

and concluded that Wong J.;;jmArk, who was born in the United States to alien parents,

8



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

705.

5 The Wong Kim Ark Court explained:

The fundamental principle of the common law with regard to English nationality was birth

within the allegiance. also c:aUed "ligealty," "obedience," "faith" or "power," of the King. The

principle embraced all persons born within the King's allegiance and subject to his protection.

Such allegiance and protection were mutual ... and were not restricted to natural-born

subject') and naturalized sul:Uects, or to those who had taken an oath of allegiance; but were

predicable of aliens in ami':y, 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 amba~;sadors, or the children of alien enemies, born during and within

their hostile occupation of part of the King's dominions, were not natural-born subjects,

because not born within thf~ allegiance, the obedience, or the power, or, as would be said at

this day, within the jurisdiction of the King.

169 U.S. at 655.

It thus clearly appears that by the law of England it)r the last three centuries, beginning betl1re

the settlement of this country, 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 protection, the power, the jurisdiction, of the English Sovereign; and

therefore every child born in 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 plai:e where the child was born.

[d. at 658. Further:

Nothing is better settled at tLe common law than the doctrine that the children, even of aliens,

born in a country, while the :Jarents are resident there under tlle protection of the government,

and owing a temporary allegiance thereto, are subjects by birth.

1£1.at 660 (quoting Inglis v. Trw·tees o./Sailors· Snug Harbor, 28 U.S. (3 Pet.) 99,164 (1830) (Story, J .•

concurring». And:

The first section of the seccnd article of the constitution uses the language, 'a natural-born

citizen.' It thus assumes that ,:itizenship may be acquired by birth. Undoubtedly, this language

of the constitution was used in reference to that principle of public law. well understood in

this country at the time of the adoption of the constitution, which referred citizenship to the

place of birth.

1£1.at 662 (quoting Dred Scot! v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting».

Finally:

All persons born in the allegimce of the king are natural-born subjects, and all persons born in

tlle al legiance of the United~;tates are natural-born citizens. Birth and allegiance go together.

Such is the rule of the common law, and it is the common law of this country, as well as of

England.

Id. at 662-63 (quoting United States 1'. Rhodes, (1866) (Mr. Justice Swayne».

9



•• ·•••• ··ft •.__ ·_····_··_··

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

analyses of Minor and Wong Kim Ark, the indiana Court concluded that

persons born with in the borders of the United States are "natural born

citizens" for Artide II, Section 1 purposes, regardless of the citizenship of

their parents. Just as a person "born within the British dominions [was) a

natural-born Briti~:h 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 citizens."

916 N.E.2d at 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.6

For the purposes (If this analysis, this Court considered that President Barack

Obama was born in the United States. Therefore, as discussed in Arkcny, he became a

citizen at birth and is a natural born citizen. Accordingly,

CONCLUSION

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

election under a.C.G.A. § ::.1-2-5(b).

SO ORDERED, February ::;rd, 2012.

;\

~J~J~.,V~MICHAEL M. MALIHI, Judge

6 This Court recognizes that the U'ong Kim Ark case was not deciding the meaning or"natural born citizen"

for the purposes of detennining rresidential qualifications; however, this Court finds the Indiana Court's

analysis and reliance on these cas~:sto be persuasive.

10



IN THE OFFICE OF THE SECRETARY OF STATE

STATE OF GEORGIA

DAVID FARRAR, LEAH LAX, CODY .JUDY,

THOMAS MALAREN, I,AIJRI.E:ROTH, Docket Number: OSAH-SECSTAT.E:

CE-1215136-60- MALUII

Petitioners,

Counsel for Petitioners: Orly Taitzv.

Counsel for Respondent: Michael.JablonskiBARACK OBAMA,

ResJlondent.

DAVID P. WELDON,

Petitioner,

v.

BARACK OBAMA,

Respondent.

CARL SWENSSON,

Petitioner,

v.

BARACK OBAMA,

Respondent.

KEVIN RICHARD POWEU ..,

Petitioner,

v.

BARACK OBA~fA.

Respondent.

Docket Number: OSAH-SECSTATE

CE-1215137-60- MAUHI

Counsel for Petitioners: Van R. Irion

Counsel for Respolldent: Michael Jablonski

Docket Number: OSAH-SECSTATE

CE-1216218-60- MAUHI

Counsel for Petitioners: J. Mark Hatfield

Counsel for Respondent: Michael Jablonski

Docket Number: OSAH-SECST ATE

CE-1216823-60- MAUHI

Counsel for Petitioners: J. Mark Hatfield

Counsel for Respondent: Mich~lelJablonski

PLAINTIFF'S

""', .EXHIBIT11'8" ,,'



FINAL DECISION1

Petitioners filed candidate challenges pursuant to O.C.G.A. § 21-2-5(b) contending that

Respondent docs not meet be State of Georgiats eligibility requirements for his name to be listed

on the 2012 Presidential Preference Primary ballot. Judge Michael Malihi, Administrative Law

Judge ("AU") for the Officl~ of State Administrative Hearings, held a hearing on each candidate

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

February 3,2012. The Secretary of State formally adopts the initial decision of the ALJ into this

final decision.

Thel'efore, IT IS HEREBY DECIDED THAT the above-captioned challenges are

DENIED.

SO DECIDED this ~;~ day of Fcbmary, 2012.

~ '~L-~ . ~'-fP. KEMP

Georgia Secretary of State

I Judge Michae1Malihi previously C Dnsolidatcd the above-captioned candidate challenges for the purpose of issuinghis initial decision. Those candidatl:' challenges remain consolidated for the purpose of issuing this Final Decision.




I, J. Mark Hatfield, Attorney for Petitioner, do hereby

certify that I have this day served the foregoing Summons and

Petition For Judicial Review and attachments thereto upon:


Attorney at Law

260 Brighton Road NE

Atlanta, Georgia 30309-1523


Secretary of State

State of Georgia

214 State Capitol


Honorable Michael M. Malihi

Administrative Law Judge

Office of State Administrative Hearings230 Peachtree Street NW

Suite 850



addressed envelope with sufficient postage affixed thereto in

order to insure proper d~livery, and by emailing same to Mr.

Jablonski at [email protected], by emailing same to

Secretary Kemp at [email protected], and by emailing same to

Judge Malihi at [email protected].



Waycross, Georgia 31:102

(912) 283-3820



IN THEi,:UPERIOR COURT OF FULTON COUNTY

KEVIN RICHARD POWELl.,

Petitioner

V.

BARACK OBAMA,

Respondent

STATE OF GEORGIA

*

* CIVIL ACTION

* FILE NO. 2012CV211528

*

*

~~DEPUTY CLERK SUPERIO

L_ Fl(LTON COUNTY,

MOTION FOR,EXPEDITED REVIEW OR, ALTERNATIVELY,

FOR STAY OF :DECISION OF SECRETARY OF STATE AND FOR

POSTPONEMENT OF, PRESIDENTIAL PREFERENCE PRIMARY ELECTION


undersigned counsel, and moves the Court for an expedited review

of the above-captioned appellate proceeding or, in the

alternative, for a stay of the Final Decision of the Georgia

Secretary of State herein and for a postponement of the Georgia

Presidential Preference Primary Election, and in support of this

Motion, Petitioner shows to the Court the following:

1.

This action is ~n appeal of a Final Decision of Georgia

Secretary of State Brian P. Kemp denying Petitioner Kevin Richard

Powell's challenge to the qualifications of Respondent Barack

Obama, a presidential candidate, to seek and hold the Office of

the President of the United States, and finding Respondent Obama

eligible as a candidate for the presidential primary election.

PLAINTIFF'S

EXHIBIT

I/c.~

Page -1-



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 for an expedited review

of this appeal, Petitioner shows that Uniform Superior Court Rule

6.7 ("Motions in em(~rgencies.") provides that

Upon written nc)tice 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 suchexpedited procE!dure. The motion shall set forth in detail

the necessity i"or such expedited procedure.

7 .

In connection with Petitioner's alternative request for a

stay of the Final Decision of the Georgia Secretary of State

herein and for a postponement of the Georgia Presidential

Preference Primary Election, Petitioner shows that pursuant to

O.C.G.A. § 21-2-5(e), while "[t]he filing of the petition shall

not itself stay the jecision of the Secretary of Stater,] ...the

reviewing court may Jrder a stay upon appropriate terms for good

cause shown." Furth<~r, O.C.G.A. § 5-3-28(b), applicable to

appeals to superior I:ourt, provides that "[t]he superior court

may issue such order:3 and writs as may be necessary in aid of its

jurisdiction on appea.l."

8 .

Petitioner subm:.ts that, in order that Petitioner may secure

the review of the Secretary of State's Final Decision to which

Page -3-



Petitioner is entitled by Georgia law, and in order that the

significant issue of constitutional interpretation raised by

Petitioner's action may be finally and decisively adjudicated,

this Court should g.rant expedited review of the instant appeal

or, in the alternative, the Court should grant a stay of the

Final Decision of the Georgia Secretary of State herein and a

postponement of the Georgia Presidential Preference Primary

Election currently ~;cheduled for March 6, 2012.

WHEREFORE, Petitioner Kevin Richard Powell respectfully

requests that this Court grant the relief requested by Petitioner

herein.

This 21st day of February, 2012.


rk Hatfierd

Atbdrney for Pet1t\onerGeorgia Bar No. 3~7\09



(912) 283-3820

Page -4-





certify that I have this day served the foregoing Motion For

Expedited Review or( Alternatively, For Stay of Decision of

Secretary of State and For Postponement of Presidential

Preference Primary Election upon:


Attorney at Law

260 Brighton Road NE

Atlanta, Georgia 30309-1523


Secretary of StateState of Georgia

214 State Capitol



addressed envelope with sufficient postage affixed thereto in

order to insure prop~r delivery, and by emailing same to Mr.

Jablonski at [email protected] and by emailing same

to Secretary Kemp at [email protected].

This 21st day o~ February, 2012.




(912) 283-3820



IN THE: SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA


Petitioner,

vs.

BARACKOBAMA,

Respondent

Civil Action File Number

2012 CV211528

MOTION TO DISMISS

Respondent moves t his Court for an order dismissing the petition as follows:

1.This Court :Iacks jurisdiction over the subject matter. O.C.G.A. § 9-11-

12(b)(1).

2. Failure of service of process. O.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-

11-12(b)(6).

Argument in favor of the motion to dismiss is set forth in the accompanying brief.

Respectfully submitted,


MICHAEL JABLONSKIGeorgia State Bar Number 385850

2221-D Peachtree Road NE

Atlanta, Georgia [email protected] PLAINTIFF'S

EXHIBIT'I ,\=--r2



IN THE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA


Petitioner,

vs.

BARACKOBAMA

Respondent

Civil Action File Number

2012 CV211528

Brief in ~:~upportof Respondent's Motion to Dismiss

The appeal from the Secretary of State's decision finding that President Obama is

qualified to appear on the Presidential Preference Primary ballot is one in a long line of

persistent challenges filed across the country since 2008. Not a single challenge has ever

been upheld.!

1.. See, Georgia cases: RhodeB v. MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), affd,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. Goodet aI, 4:2009cvoo082, 2009 WL 2163535 (M.D.Ga. July 16, 2008).

Federal cases: Allen v. Soetoro, 4:09-cv-00373, 2011 WL 2130589, (D. Ariz. May, 2010);

In re: American Grand Jur!/, 3:09mc00215(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 (9thCir., 2011); Berg v. Obama et aI, 574 F.Supp.2d 509 (E.D.Pa. 2008),

affd, 586 F.3rd 234 (3rd Cir. 2009), Cert. denied, 129 S. Ct. 1030 (2009); Berg v.

Obama, 656 F. Supp.2d. 10'7CD.D.C.Cir. 2009); Beverly v. Federal Elections

Commission, 09-15562 (KD. Cal., 2008), affdo9-15562 (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 Missouriet al v. Obama et aI, 6:08cv03405, 2011WL 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 aI, 4:2009cvoo082, 2009 WL 2163535,

(M.D. Ga. July 16,2008); Cook v. Simtechn 8:2009cV01382 (M.D. Fla., 2009); Craig v.

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. Obama,

2:08cv02754, 2009 WL532617 (E.n. Cal. March 2,2009); Ealey v. Sarah Obama, 4:08-mc-00504 (S.D.Tex.,2008); Essek v. Obama, OS-379-GFVT (E.D. Ky., 2008); Hamblin v. Obama,2:09cV00410, 2009 WL 2513986 (D. Ariz. Aug. 14,2009); Hamrick v. Fukino, 1:08-cv

00544, 2009 WL 1404535 (Haw., May 20, 2009); Herbert v. Obama, 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, 131S. 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. Obama, 2:10-CV-01075 (C.D. Cal., 2010); Judy v. McCain, 2:08cV01162

(USDC Nev., 2008); Kerchner v. Obama, 612 F.3d 204 (D.N.J. 2010), cert. denied, 131S. Ct. 663 (2010); Liberty I,egal Foundation v. DNC, CH-11-1757 (D Ariz., 2011);

Mackay v. Obama, 2:11-CV"05458-JP (E.D. Pa., 2011), voluntarily dismissed, No. 113862 (USDC Pa., 2011);McLanahan v. Obama, 2:11-CV-00374-EFS (D.Was., 2011);

Morrow v. Barak Humane Obama, 1:08-cv-22345 (S.D. Fla., 200B); Neely v. Obama,2:oB-cV-15243 (E.D.MI., 200B); Patriot's Heart Network v. Soetoro, 1:09-mc-00442RCL (D.D.C., 2009); In Re Paul Andrew Mitchell, 2:oB-cv-04083 (E.D. PA, 200B),affd

304 Fed. Appx 113, 200B vVL53B1436 (3rd Cir., 200B), mandamus denied, No. oB4443 (3d Cir., 2008); Purpura v. Sebelius, 3:1O-CV-04B14,2011WL 154776B, (D.N.J.Apr. 21, 2011); Rhodes v. Gates, 5:09-,cv-00703-XR (W.D.Tex., 2009); Rhodes v.

MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), affd, 2010 WL 892848 ( 11thCir.March 15, 2010) cert. denied, 129 S. Ct. 2B30 (2009); Robinson v. Bowen, 567

F.SUpp.2d 1144 (N.D.Cal. 2008); Roy v. Fed. Election, 2:08cvOI519, 2008 WL 4921263,(W.D. Wa. Nov. 14, 200B); Stamper v. US, l:oB CV2593, 2008 WL 4838073 (N.D.OH.

2008); Strunk v. Patterson, 1:oBcv042B9 (E.D.N.Y., 200B), appeal dismissed No. oB5422 (2d Cir. Nov. 14, 2008); Strunk v. U.S. Dept. of State, 693 F.SUpp.2d 112 (D.D.C.

Cir. 2010), mandamus den l'ed, 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. Obama, 70? F.SUpp.2d 1 (D.D.C. Cir. 2010), appeal pending, No. 115304 (DCCir., Oct. 31,2011); Taitz v. Astrue, 1:11-CV-00402,2011WL 3B05741, (D.D.C.

Aug. 30,2011); Taitz v. Astl'ue, 1:1l-mC-0015B (D.Haw., 2011); Taitz v. Ruemmier, 1:11CV-01421(D.D.C., 2011); Thomas v. Hosemann, 1:oBmco02Bo (D. Haw., 200B);Thomas v. Hosemann, 2:oB-cv-00241-KS-MTP (SD Miss., 2008).

State cases: Ankeny v. Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) Affd, No. 49A02

0904-CV-353 (Ind. App. Court); Brockhausen v. Andrade, No. 08-1001-C365 (Tex.State Court); Broe v. Reed, 82473-B (Was. State Supreme Court); Connerat v.

Browning, 999 So. 2d 644 O~la.Dist. Ct. App. 2008); Connerat v. Obama, No.09003103SC (Fla. State Court); Connerat v. Obama, No. 09005522SC (Fla. State

Court); Constitution Party v. Lingle, No. 29743, 200B WL 51259B4 (Haw. Dec. 5,200B); Corbett v. Bowen, No. 30-2008-00114112-CU-FR_CJC, (Cal. Superior Court,



An effort to harass the President continues with qualification challenges filed

across the country and in (}eorgia. Challengers ignore procedural and evidentiary

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

pursuit of a political agenda. See, for example, Rhodes v. MacDonald, 670 F. Supp.2d

1363,1364 (M.D. Ga. 2009), affd, 2010 WL 892848 (11th Cir. March 15, 2010) cert.

denied, 129 S. Ct. 2830 (2009)("When a lawyer uses the courts as a platform for

2008); Craig v. Oklahoma: MA-109808 (Okla. Supreme Court); Donofrio v. Wells, No.

AN-I053-08T2 (NJ. Nov. 03, 2008), Cert. denied, 129 S. Ct. 752 (2008); Fitzpatrick v.Obama, no docket number (NC State Court); Greenberg v. Brunner, No. 2008cVI024(Ohio State Court, 2008); In re John McCain's Ineligibility to be on Presidential

Primary Ballot in Pa, 944 .A..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. State Court); Lightfoot v. Bowen, No. 168690 (Cal. SupremeCourt, 2008), Cert. denied, 555 U.S. 1151(2009); Marquis v. Reed, No. 08-2-34955-1(Was. State Court, 2008); lI,fartin 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, :;W09 WL 2372096 (Haw. Aug. 3, 2009); Martin v. Bennett,No. lCClO-l-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. loHoo0605 (Ill. State Court); Schneller v. Cortes, 199 MM

2008 (Pa. Supreme Court, :;W09), cert. denied, 129 S. Ct. 2830 (2009); Sorsensen v.Riley, cv-2008-1906 (Ala. S:ate Court, 2008); Spuck v. Sec. of State, 2008 CVI116(OhioState 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); Sv1livan v. Sec. of State, 08CV1076(N.C. State Court, 2008);Sullivan v. Marshall, 08cvs·, 021393 (N.C. State Court, 2008); Taitz v. Fuddy, lCCll-l

001731 (Haw. State Court); 'Terry v. Handel, 08cv158774S (Superior Court Fulton

County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsiderationdenied, No. S09A1373; Wroilnowski v. Bysiewicz, SC 18264 (Conn. Supreme Court,2008).



political agenda disconnected from any legitimate legal cause of action, that lawyer

abuses her privilege to pradice law.")

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

Hawaii. Since he held citizli~nshipfrom birth, all Constitutional qualifications have been

met. Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. App., 2009); see,

United States v. Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir., 2011). There is no

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

Specially appearing before this Court, respondent show that petitioner's actions

should be dismissed as they have been in numerous cases for lack of jurisdiction over

the subject matter, failure of service of process, and failure to state a claim upon which

relief can be granted. O.C.G.A. § 9-11-12(b)(1), (5), and (6).

1. LACKOF SUBJECT MATTER JURISDICTION

A. THE STATE OF GEORGIA MAYNOT EXERCISE

JURISDICTION- OVERA POLITICAL PARTY'S CHOICE OF

NAMES TO IN(;LUDE IN THE PRESIDENTIAL PREFERENCEPRIMARY.

The Democratic Part,? of Georgia, a political party as defined by O.C.G.A. § 21-2-

2(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 of the United States." O.C.G.A. § 21-2-191. No one is elected to any

office, nor is anyone nomin:lted to run for any office, as a result of the Presidential

Preference Primary. Nomination of a candidate for the office of President will occur at

the national convention in Charlotte, NC during the week of September 3, 2012.



The Democratic Party of Georgia determines names to include on its Presidential

Preference Primary ballot at its sole discretion. O.C.G.A. § 21-2-193. A state political

party "enjoys a constitutionally protected freedom which includes the right to identify

the people who constitute this association that was formed for the purpose of advancing

shared beliefs and to limit the association to those people only." See Democratic Party

of u.s. v. Wisconsin, 50 U.S. 107, 101 S.Ct. 1010, 1019, 67 L.Ed.2d 82 (1981). Duke v.

Cleland, 954 F.2d 1526, 15~!,0-1nth Cir. 1992). First amendment associational rights of

a political party are most often litigated in the context of a party refusing to allow a

name to appear on a primmy ballot (such as in Democratic Party of u.s. v. Wisconsin

or Duke v. Cleland) but the reverse is also true: a political party enjoys the exclusive

right to dictate names on it~;:primary ballot. The right to associate not only contemplates

the ability to exclude but, necessarily, who to include.

Apportionment of de legates as a result of preference primary results constitutes

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

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

Poythress, 485 F.Supp. 904, 912 (N.D. Ga., 1980); Duke v. Cleland, 954 F.2d 1526 (nth

Cir., 1992).

B. THE QUALIFICATIONS CHALLENGE STATUTE DOES NOTAPPLYTO THE PRESIDENTIAL PREFERENCE PRIMARY.

O.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." O.C.G.A. § 21-:;~-191.The election code defines "election" as "any general or

special election and shall not include a primary or special primary unless the context in



which the term is used clearly requires clearly requires that a primary or special primary

is included. " O.C.G.A. § 21-2-2(5). Neither the preference statute nor the definition

reference the Presidential Preference Primary. Nothing in the context of O.C.G.A. § 21-

2-5 "clearly requires" applicability to the preference primary."

O.C.G.A. § 21-2-5 applies when a candidate is "certified by the state executive

committee of a political pailty or ... files a notice of candidacy." O.C.G.A. § 21-2-5(a).

Neither occurred here. (CeJltification of candidates by a party executive committee refers

to the qualification procedure in O.C.G.A. § 21-2-154(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 SUMMONS AND PETITION FOR REVIEW UPON AN

ATTORNEY REPRESENTING A PARTYIS 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 as authorized by O.C.G.A. § 9-1l-4(d) nor did it attempt

personal service using the m.ethods specified by O.C.G.A. § 9-1l-4(e) or 4(f). "Where

there is no process and no waiver of process, no valid suit arises." State Hwy. Dept. v.

Noble, 220 Ga. 410, 414,139 S.E.2d 318 (1964)·



III. THE PETITION FOR REVIEW DOES NOT STATE CLAIMSAGAINSTTHE PRESIDENT

The proper party re:;;pondent when challenging a qualification decision made by

the Secretary of State is the Secretary of State. In order to grant the relief sought by the

petitioner the Secretary of State needs to be before the court. He is not. See, for example,

Handel v. Powell, 284 Ga. 550 (2008), in which the only parties in the appeal were the

Secretary of State and the c:hallenger of the Secretary's decision.

The relief sought by the petitioner is relief from a decision of the Secretary of

State. In paragraphs 13 and 15of 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. In 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, 646 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.2cl72 (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 Secret~':ryof State must be established before the court can enter

any ruling binding a party such as the Secretary of State or the ruling is declared null

and void. See Estate of MarJorie C. Thurman v. Dodaro, 169 Ga.App. 531, 532(1), 313

S.E.2d 722 (1984). Knowledge that the suit exists does not substitute for compliance



with service of process statute. Williamsonv. Basenback, 298 Ga.App. 567, 680 S.E.2d

577 (2009).

The relief sought by the petition is directed against the Secretary of State, not the

President. The complaint does not state a claim against the President.

IV. CONCLUSION

Respondent specially appears in this Court to show that the petition for review

should be dismissed.

Respectfully submitt sd,


MICHAEL JABLONSKI

Georgia State Bar Number 385850

2221-D Peachtree Road NEAtlanta, Georgia 30309404-290-2977

michael.jab Ionski@)comcast.l1et




I hereby certify that I have this day served the foregoing pleading upon

Mr. Mark Hatfield

Attorney at Law201 Albany AvenueP.O. Box 1361


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

[email protected].

This 27th day of February, ~W12.

MICHAEL JABLONSKI

Georgia State Bar Number ~!,85850

2221- D Peachtree Road NE

Atlanta, Georgia 30309404-290-2977

micha el.jablonski (ji)comcast.net



IN THE:SUPERIOR COURT OF FULTON COUNTY

* rFI~~[iNFFIC[~AR 05_

2~ID~PU1YCtERl( "WERIO. R COFULTON COUNTY, GA

fnFILE NO. 2012CV211528

* CIVIL ACTION

*

STATE OF GEORGIA

Petitioner

KEVIN RICHARD POWELJI~,

V.

BARACK OBAMA, *

Respondent *

PETITIONER'S RESPONSE TO

RE:SPONDENT'S MOTION TO DISMISS


undersigned counsel, and responds to Respondent Barack Obama's

Motion to Dismiss herein as follows:

PRELIMINARY STATEMENT

Respondent Obama's Motion to Dismiss initially claims that

the instant case is one in a series of cases filed across the

country since 2008 in "[a]n effort to harass" Respondent.

Respondent further claims that those individuals, presumably

including Petitioner herein, bringing challenges to Respondent's

qualifications for office "ignore procedural and evidentiary

requirements because their claims are without merit, based on

fantasy, and offered in pursuit of a political agenda." Finally,

Respondent claims that he "was a United States citizen from the

moment of his birth .inHawaii" and that therefore, "all

Constitutional (sic) qualifications have been met." A review of

- PLAINTIIFF'S EXHIUlT-,\IJ/:=_

Page -1-



the record in this action, however, reveals that Respondent's

assertions are completely misguided.

Petitioner firnt notes that no individual, including

Respondent Obama, hcls a vested right to be the President of the

Un~ted States. An individual seeking to hold the Office of the

Presidency is expected and required to comply with the provisions

of the Constitution, including the eligibility requirements for

the presidency, and the laws of the United States and the Several

States thereof.

With the foregoing in mind, Petitioner would point out that

it was Respondent Obama, in fact, who initiated the submission of

his name as a candidate to be listed on the Georgia Democratic

Presidential Ballot. Likewise, in accordance with his rights

under Georgia law, P2titioner raised an administrative challenge

to the Respondent's qualifications as a "natural born Citizen"

pursuant to Article II of the United States Constitution.

Respondent and his la.wyer tried, unsuccessfully, to have

Petitioner's challenqe dismissed. Respondent was then legally

served with a Notice to Produce, requiring him to appear at trial

and to bring certain documents and items of evidence with him.

The Respondent did not object.

When the time for trial was imminent, the Respondent's

lawyer wrote a lette!: to the Georgia Secretary of State in which

he boldly criticized and attacked the administrative law judge

Page -2-



and in which he stated that he and his client were refusing to

come to court. The day of trial, when Respondent had no events

or duties on his official public schedule, and after the

Secretary of State lladwarned him that his failure to appear

would be at his own peril, the Respondent and his lawyer

nevertheless failed to appear for court and failed to comply with

Petitioner's valid Notice to Produce. The Respondent thus not

only presented no ev·idence of his own as to his eligibility for

office, but he failEd to produce significant pieces of evidence

to which Petitioner was legally entitled.

In view of the foregoing misconduct and failings of

Respondent and his lawyer, and considering Respondent's total

disregard of the laws of this State and the judiciary thereof, it

appears that it is Respondent, and not Petitioner, who "ignore[s]

procedural and evidentiary requirements," who is "in pursuit of a

political agenda," and whose factual assertions - which he fails

to support with any evidence - are "based on fantasy."

Petitioner, far from seeking to "harass" anyone, is simply

availing himself of lawful procedures under Georgia law in order

to properly raise and have finally determined the issue of

whether Respondent, liVhose fa ther was a foreign na tiona] and never

a United States citizen, is a "natural born Citizen" eligible

under Article II of the Constitution for the Presidency of the

United States. In that regard, Petitioner contends that the

Page -3-



"natural born CitiZl'~n"requirement of Article II was intended to

prevent anyone born with dual national citizenship and dual

national allegiance~3 from holding the presidency and the ultimate

command of this nat:_on's military forces. It is thus nothing

less than a matter e)fnational security that the proper meaning

and construction of the "natural born Citizen" requirement, as

set forth in Minor V. Happersett, 88 U.S. 162, 167, 22 L. Ed.

627, 21 Wall. 162 (1875), be conclusively confirmed by the

Judiciary.

I. SUBJECT-Mlli.TTER JURISDICTION

Seeking dismissal on the basis of a lack of subject-matter

jurisdiction in this Court, Respondent first argues that First

Amendment associational rights of a political party give the

party the exclusive right to determine whom to include on its

Presidential Preference Primary ballot. While Respondent

contends that First Amendment associational rights of a party are

"most often litigated" in the situation in which a party refuses

to permit a name on 3 primary ballot (citing Democratic Party of

U.S. v. Wisconsin, 58 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82

(1981); Duke v. Clel~3.nd,954 F. 2d 1526 (11th Cir. 1992)), he

also claims that "thl~ reverse is also true" in that the party has

the unchecked right:o require certain names on its primary

ballot. Respondent, however, cites no authority for the latter

proposition. Moreover, none of the cases cited by Respondent are

Page -4-



authority for the c~Jnclusion that a political party's

constitutional asso(:iational rights deprive a state government of

its ability to require that candidates meet constitutional or

statutory eligibilit:y requirements for office in order to be

placed on the state ballot.

O.C.G.A. §§ 21--2-5(b) and (c) authorize the Georgia

Secretary of State, or an eligible Georgia elector, to challenge

a candidate's qualii'ications, and the Secretary of State is

thereafter empowered to determine whether the candidate is

qualified to seek ard hold office. O.C.G.A. § 21-2-5(e) gives an

elector unsuccessfully challenging a candidate's qualifications

the right to appeal the Secretary of State's decision by filing a

petition in the Superior Court of Fulton County. Given the

state's right to run its own elections, nothing pertaining to the

associational rights of the Respondent's political party deprives

this Court of subject-matter jurisdiction in this matter.

Respondent also contends, however, that O.C.G.A. § 21-2-5,

the Georgia qualifications challenge statute, does not apply to

the Presidential Preference Primary and that this Court therefore

does not have subject-matter jurisdiction. In this connection,

Respondent points out that the definition of "election" found in

O.C.G.A. § 21-2-2(5) includes general or special elections, but

not a primary or special primary unless the context in which

Page -5-



"election" is used nclearly requires" the inclusion of a primary

or special primary.

Respondent overlooks, however, the provisions of O.C.G.A. §

21-2-15 inasmuch as

This chapter shall apply to any general or

special eJection in this state to fill any

federal, ::,tate,county, or municipal office,

to any general or special primary to nominate

candidates for any such office, and to any

federal, ~;tate, county, or municipal election

or primary for any other purpose whatsoever,

unless otherwise provided.

Respondent further fails to realize that the qualifications

challenge statute, (I.C.G.A. § 21-2-5, grants a right to challenge

the qualifications e,f"any candidate," regardless of the specific

type of election. Contestants in a Presidential Preference

Primary are designated as "candidates." O.C.G.A. § 21-2-193.

Respondent nevertheless argues that a "candidate" must be

"certified by the state executive committee of a political party"

or must submit "a notice of candidacy," see O.C.G.A. § 21-2-5(a),

and that neither of such conditions have taken place as to

Respondent. O.C.G.A. § 21-2-5(b) provides, however, that a

challenge of the qualifications of any candidate may be made "at

any time prior to th,:;election of such candidate," and

Respondent's political party would presumably be filing a

certification of his nomination prior to the general election.

Petitioner additiona:Lly submits that "certified" and "notice of

candidacy" are not specifically defined terms in the Georgia

Page -6-



Election Code, and one could argue that the list of Presidential

Preference Primary candidates submitted by Respondent's political

party pursuant to O.C.G.A. § 21-2-193 constituted a

"certification" or 21 "notice of candidacy."

Accordingly, it:is apparent that the Georgia qualifications

challenge statute deles, in fact, apply to the Presidential

Preference Primary 2lnd that this Court does have subject-matter

jurisdiction herein.

II. SERVICE Oli' SUMMONS

Respondent alse, seeks dismissal for the reason that "service

of the summons and complaint was made by mailing to

[R]espondent's attorney." Respondent claims that personal

service or a waiver thereof was required for a viable suit.

The case of Douglas Asphalt Co. v. Georgia Public Service

Commission, 263 Ga. App. 711, 589 S.E. 2d 292 (2003) is

controlling. In DOt:,glasAsphalt, the Court held that in an

appeal of an administrative decision of a state agency or other

tribunal, personal service of the petition for judicial review

upon the agency was not required, and service by mail was proper

to preserve the jurisdiction of the court. The Court

specifically noted that service of appeals from an agency

decision is governed by O.C.G.A. § 5-3-21, which provides in

pertinent part that "[a] copy of the notice of appeal shall be

served on all parties in the same manner prescribed by Code

Page -7-



Section 5-6-32." O.C.G.A. § 5-6-32(a), in turn, provides in

pertinent part that

Whenever under this article service or the

giving of any notice is required or permitted

to be made upon a party and the party is

represented by an attorney, the service shall

be made upon the attorney unless service upon

the party himself is ordered by the court.

Service of all notices and other papershereunder and service of motions for new

trial, motions in arrest, motions for

judgment notwithstanding the verdict, and all

other similar motions, orders, and

proceedins:rsmay be made by the attorney or

party fili.ng the notice or paper, in person

or by mail., and proof thereof shown by

acknowledgment of the attorney or party

served, or by certificate of the attorney,

party, or other person perfecting service.

Therefore, in the instant case, service of the Petition upon

Respondent Obama by mailing same to his attorney was in

accordance with Georgia law. Petitioner notes in passing,

however, that even if the service by mail were for any reason not

considered proper, C.C.G.A. § 5-3-2l(b) states in pertinent part

that "[f]ailure to perfect service on any party shall not work

dismissal, but the superior court shall grant continuances and

enter such other orders as may be necessary to permit a just and

expeditious determination of the appeal."

III. STATEMENT OF CLAIM AGAINST RESPONDENT

Respondent finally requests dismissal because "[t]he proper

party when challenging a decision made by the Secretary of State

is the Secretary of state." Respondent states such contention

Page -8-



with no citation of authority whatsoever. Nevertheless,

Respondent goes on 1:0 claim that Petitioner's action does not

seek any relief against Respondent, but only against the

Secretary of State. Respondent further contends that there is a

lack of personal ju]~isdiction over the Secretary of State, as

"[n]o summons commands appearance by the Secretary of State in

this matter."

Beginning with the latter issue of "summons," Respondent's

legal analysis is flawed. O.C.G.A. § 21-2-5(e) makes plain that

Petitioner's Petition For Judicial Review is an appeal from the

decision of the Secretary of State; it is not an original civil

action. The only reference to service of the Petition in

O.C.G.A. § 21-2-5(e) states that "[a]s soon as possible after

service of the petit.ion, the Secretary of State shall transmit

the original or a certified copy of the entire record ...to the

reviewing court." Nowhere in this statute is "summons" required

or even mentioned.

Likewise, O.C.C;.A. § 5-3-21(b) provides in pertinent part

that" [a] copy of t:he notice of appeal shall be served on all

parties .... " Again, nowhere in the statute is "summons" required

or even mentioned.

Furthermore, in DouQlas Asphalt, 263 Ga. App. at 711-712,

the state agency wa~: served with the petition by mail, wi th no

summons at all. The Court affirmed the judgment of the superior

Page -9-



court which denied -:heagency's motion to dismiss. The motion to

dismiss had been ba:3ed upon an allegation of failure to perfect

personal service.

As for his rOlE! herein, the Secretary of State is not a

proper party to thi~; petition. In this appeal, the Secretary of

State is essentially in a quasi-judicial role, akin to a lower

court. The challen~re to Respondent'~ qualifications was not

brought by the SecrE~tary of State, but by Petitioner. Petitioner

and Respondent were the named parties below, and Respondent (at

least up until trial) defended the challenge; the Secretary of

State did not defen~. the challenge in any manner. The entity

with an interest at stake in this challenge was Respondent, not

the Secretary of State.

Under these circumstances, Petitioner's challenge was not a

dispute between Petitioner and the Secretary of State (i.e. the

agency). The challenge was a dispute between Petitioner and

Respondent, and same was merely adjudicated by the Secretary of

State. The instant Petition does therefore state a claim against

Respondent.

The items of relief sought by Petitioner in the instant

action are a reversal of the Final Decision of the Secretary of

State, a finding that Respondent does not meet the Article II

"natural born Citizen" requirement for the presidency, a removal

of Respondent's name from the ballot, an order adjudging

Page -10-



Respondent in conter~pt of court for his deliberate failure to

comply with Petitioner's Notice to Produce in the administrative

proceedings; and cOllditionally, a postponement of the

Presidential Preference Primary Election. Should the requested

relief be granted b~'this Court, such would be primarily granted

in the form of an order reversing the Final Decision of the

Secretary of State ~rith direction to the Secretary of State as to

the appropriate remedy to be crafted, in much the same manner

that the Court of Appeals or Supreme Court would reverse a

superior court judgn~nt with direction. The Secretary of State

simply does not neec. to be a party in order to accomplish this

Court's granting of the requested relief, and none of the

applicable statutes require the Secretary of State to be named or

considered a party.

Petitioner further notes that Respondent's citation to

Handel v. Powell, 2E:4 Ga. 550 (2008) is misplaced, as the

Secretary of State there personally brought the challenge to a

candidate's qualifications. There was no challenge filed by an

elector, as in Petitioner's instant case. Powell, the candidate,

filed the petition for judicial review, and Powell and the

Secretary of State were the only two (2) parties in both the

initial challenge and the appeal to superior court.

Petitioner again notes in passing, however, that even if the

Secretary of State were for any reason deemed to be a necessary

Page -11-



party to this appea:. who had not been properly served, O.C.G.A. §

5-3-2l(b) states in pertinent part that "[f]ailure to perfect

service on any part~l shall not work dismissal, but the superior

court shall grant continuances and enter such other orders as may

be necessary to perrlit a just and expeditious determination of

the appeal."

·CONCLUSION

For the above 2lnd foregoing reasons, Petitioner respectfully

requests that Respondent's Motion to Dismiss be denied.

Respectfully s1.:bmitted,this 2nd day of March, 2012.


201 Albany Avenue

P.O. Box 1361


(912) 283-3820

Page -12-





certify that I have this day served the foregoing Petitioner's

Response to Respondent's Motion to Dismiss upon:


Attorney at Law2221-D Peachtree Road NE



Secretary of State

State of Georgia

214 State Capitol



addressed envelope "ith sufficient postage affixed thereto in

order to insure proper delivery, and by emailing same to Mr.

Jablons ki at michae::~.'[email protected] and by emailing same

to Secretary Kemp at [email protected].

This 2nd day of March, 2012.



Waycross, Georgia 3I502

(912) 283-3820



r age; I VI I

Mark Hatfield

From: Mark Hatfield [email protected]]

Sent: Friday, March 02, 2012 6:52 AM

To: elizabeth. [email protected]

Cc: michael.jablonski@c:omcast.net;[email protected]

Subject: ** Court Filing ** Powell v. Obama / Fulton Superior CAFN: 2012CV211528

Attachments: powellkr1res.pdf

Please see attached Petitioner's Re:3ponseto Respondent's Motion to Dismiss. As per the Court'spermission, please accept this Response as filed with the Court today. I am forwarding the original to theClerk for filing by UPS overnight mail to arrive Monday.

J. Mark Hatfield, Esq.Hatfield & Hatfield, P.C.


Waycross, Georgia 31502(912) 283-3820

(912) 283-3819 [email protected]

CONFIDENTIALITY NOTICE: This; e-mail transmission and the attachments accompanying itcontain information from the lawl)ffice of Hatfield & Hatfield, P.C. which is protected by theattorney-client communication priivilege or the work product privilege. The information isintended only for the use of the irltended recipient. If you are not the intended recipient, be awarethat any disclosure, copying, distlribution, or use of the contents of this transmission isprohibited. If you have received this transmission in error, please promptly notify the sender byreply e-mail and then destroy all (::opiesof the transmission.



ragt: 1 Ul .)

Mark Hatfield

To;

Sent:

From:

Cc:Subject:

Baum, Elizabeth [[email protected]]

Friday, March 02, 201'2 8:30 AM

[email protected]; codyjudy@hotmai/.com; [email protected]; Russo,

Vincent; David Farrar; [email protected]; [email protected]

White, ConnieRE: Farrar, et a!. v. Obama, et a!.: 2012CV211398; Welden v. Obama: 2012CV211537, Swenssonv. Obama: 2012CV211527, Powell v. Obama: 2012CV211528

Importance: High

Counsel/Parties:

The Court is in receipt of the courtesy copies of your Responses to Respondent Barack

Obama's Motion to Dismiss. The Court will consider same in ruling on Respondent's

Motion to Dismiss. The Court intends to issue that ruling today. Again, please note that the

Order will be entered before your responses are officially filed of record with the Clerk of

Court. I assume all responses will be promptly mailed or delivered to the Clerk for filing

purposes.

Thank you for submitting these Responses to us within the timeframe articulated and for

doing so by email as requested.

Elizabeth Baum

Staff Attorney to the Honorablle Cynthia D. WrightChief Judge, Superior Court of Fulton County

136 Pryor Street, SW, Suite C92 7

Atlanta, GA 30303

Phone: (404) 613-4187

Fax: (404) 893-6610elizabeth. ba um({7)fultoncoun tvga"go\'

From: Baum, Elizabeth

Sent: Thursday, March 01, 2012 10:32 AMTo: '[email protected]'; coc:[email protected]; [email protected]; Russo,

Vincent; David Farrar; [email protected]; [email protected]

Subject: RE: Farrar, et al. v. Obama, et al.: 2012CV211398; Welden v. Obama: 2012CV211537,Swensson v. Obama: 2012CV21152'j', Powell v. Obama: 2012CV211528

Importance: High

In light of these circumstances, [he Court will consider a copy of your response submitted

by email or fax. Please submit il:by email (even if you fax it, as well) as, occasionally, faxes

do not go through, and I want to ensure we receive it. You may send your original response

to the Clerk tomorrow with the understanding that the Court may issue its ruling on the

Motion to Dismiss before your original response is actually filed with the Clerk.

All parties/counsel may proceed in this manner.



rag\:: LUl)

Thank you,

Elizabeth Baum

Staff Attorney to the Honorab:le Cynthia D. WrightChief Judge, Superior Court ofFlllton County136 Pryor Street, SW, Suite C927

Atlanta, GA 30303

Phone: (404) 613-4187

Fax: (404) 893-6610

eli zabeth. ba \Ull (a! tlll toncoun tyga: g'o\'

From: J. Mark Hatfield [mailto:mha1;[email protected]]

Sent: Thursday, March 01, 2012 1025 AM

To: Saum, Elizabeth; [email protected]; [email protected]; Russo, Vincent; David Farrar;

[email protected]!; cale:@sos.qa.qov

Subject: Re: Farrar, et al. v. Obama, et al.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson v.Obama: 2012CV211527, Powell v. Obama: 2012CV211S28

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 Atlzmta 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 resp0ll:';es to UPS in time for overnight delivery.

Thus, I would respectfully request that the Court accept my responses for Plaintiffs Swensson andPowell as filed with the Court by email (or fax) with the hard copy being delivered to the Clerk aftertomorrow's deadline.

I appreciate the Court's consideraljon of this request.

J. Mark Hatfield

"Sent from my Verizon Wireless BlackBerry"

From: "Baum, Elizabeth" <Elizabeth.Ballm0ifultoncollntvga.gov>

Date: Thu, 1 Mar 201209:31 :37,·0500

To: codyi lldv@,hotmail.com<codvjudy(([1,hotmail.com>;

michad. iablonski(a),comcast.net<michael. [email protected]>; Russo,

Vincent<vrusso(evsos. ga.gOY>;David Farrar<david. is.farrarra~gmail.com>;

111hatf!eId((i)wayxcabIe.com<mhatfield(lvwayxcab Ie.com>;van(QJ.liertv Iegalfoundation.org<:vanrCi}libertvlegalfoundation. org>; cale{{V,sos.a.gov<cale@sos.,Qa.gov>Subject: Farrar, et a1.v. Obama, et a1.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson

v. Obama: 2012CV211527, Powell v. Obama: 2012CV211528

Respondent Barack Obama filed a Motion to Dismiss in each of the above matters on February 27.



J. a!:,,,,, J vJ. J

2012. Ifyou wish to file a response to the Motion to Dismiss, Counsel/Parties are hereby given

until tomorrow morning, Friday. 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

136 Pryor Street, SW, Suite C9~~7Atlanta, GA 30303

Phone: (404) 613-4187

Fax: (404) 893-6610

elizabeth. baum((7J,fuloneo untvga. gO\"



Dear Secretary Kemp:

Re: Georgia Presidential Preference Primary Hearings

For these reasons, and 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.

260 Brighton Road, NE


404.290.2977

815.846.0719 (fax)m icha eI.jab Ions [email protected]

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

([email protected])

Michael JablonskiAtto rney-at -law

January 25, 2012

Hon. Brian P. Kemp

Georgia Secretary of State:

214 State Capitol


PLAINTIFF'S

EXHIBIT"~

Nonetheless, the Administrative Law Judge has exercised no control whatsoever

over this proceeding, and it threatens to degenerate into a pure forum for political

posturing to the detriment (Ifthe reputation of the State and your Office. Rather than

bring this matter to a rapid ,wnclusion, the ALJ has insisted on agreeing to a day of

hearings, and on the full pmticipation 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.

This is to advise yo u 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 orrun 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 proceli~dingsaround the country, all of which have concluded that

they were baseless and, in wme instances - including in the State of Georgia - that those

bringing the challenges have engaged in sanctionable abuse of our legal process.



It is well establishecl.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 bis website. "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 thecountry. Even if a state wel~eto 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 another 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 Urlited States Constitution." Maskell, "Qualifications for

President and the "Natural Born" Citizenship Eligibility Requirement, " Congressional

Research Service (November 14, 2011), pAl.

Nonetheless, the ALJ has decided, for whatever reason, to lend assistance through

his office--and by extension, yours-to the political and legally groundless tactics of the

plaintiffs. One of the attomeys for the plaintiffs has downloaded form subpoenas whichshe tried to serve around thl~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 #106~lilfor Barack Obama, II, issued 08.08.1961 by Dr. David

Sinclair ...," even though Hawaii courts had dismissed with prejudice the last attempt toforce release of confidential records on November 9, 2011. Taitz v. Fuddy, CA No. 11-11731-08 RAN.

In Rhodes v.McDonald, 670 F. Supp. 2d 1363, 1365 (USDC MD GA, 2009),

Judge Clay Land wrote this of plaintiff's attorney:

When a lawyer files 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 lawyerabuses herprivilege topractice law....

As a national leader in the so-called 'birther movement.' Plaintiff's

counsel has attempted to use litigation toprovide the 'legalfoundation'

for her political agmda. She seeks to use the Court's power to compel

discovery in her efforts force the President to produce a 'birth

2



certificate' that is satisfactory to herself and her followers:~ 670 F.Supp. 2d at 1366.

All issues were pres,ented to your hearing officer-the clear-cut decision to be on

the merits~ and the flagrantly unethical and unprofessional conduct of counsel-and hehas 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 of his office-that it address

constitutional issues-is by law not within its authority. See, for example, Flint River

Mills v. Henry, 234 Ga. 385, 216 S.E.2d 895 (1975); Ga. Compo R. & Regs. r. 616-1-2

.22(3).

The Secretary of StlJlteshould withdraw the hearing request as being

improvidently issued. A rellerring agency may withdraw the request at any time. Ga.

Compo R. & Regs. r. 616-1-2-.17(1). Indeed, regardless of the collapse of proceedings

before the ALJ~ 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), reconsiderationdenied, No. S09A1373. ("The

Secretary of State of Georgiia is not given any authority that is discretionary nor any that

is mandatory to refuse to aillow 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 preJlerence 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 taking the requested action, and as we do so, we will, of course,

suspend further participation in these proceedings, including the hearing scheduled for

January 26.

Very truly yours,

L:Ju : J,.a /J(/~t

MICHAEL JABLONSKI

Georgia State Bar ]~umber 385850

Attorney for President Barack Obama

cc: Hon. Michael Malihi (c/o Kim Beal ([email protected]))

Van Irion, Esq. ([email protected])

3

powell v obama, application for discretionary appeal, georgia supreme court, 3-13-2012

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