swensson v obama, petitioner's response to respondent's motion to dismiss, fulton county superior...

8/2/2019 Swensson v Obama, Petitioner's Response to Respondent's Motion to Dismiss, Fulton County Superior Court, 3-2-2

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IN THE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGI.A

CARL SWENSSON, *Petitioner * CIVIL ACTION

v. * FILE NO. 2012CV211527BARACK OBAMA, *

Respondent *PETITIONER'S RESPONSE TO

RESPONDENT'S MOTION TO DISMISSNow comes Petitioner Carl Swensson, by and through

undersigned counsel, and responds to Respondent Barack Obama'sMotion to Dismiss herein as follows:

PRELIMINARY STATEMENTRespondent Obama's Motion to Dismiss initially claims that

the instant case is one in a series of cases filed across thecountry since 2008 in "[a]n effort to harass" Respondent.Respondent further claims that those individuals, presumablyincluding Petitioner herein, bringing challenges to Respondent'squalifications for office "ignore procedural and evidentiaryrequirements because their claims are without merit, based onfantasy, and offered in pursuit of a political agenda." Finally,Respondent claims that he "was a United States citizen from themoment of his birth in Hawaii" and that therefore, "allConstitutional (sic) qualificatio0s have been met." A review of

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the record in this action, however, reveals that Respondent'sassertions are completely misguided.

Petitioner first notes that no individual, includingRespondent Obama, has a vested right to be the President of theUnited States. An individual seeking to hold the Office of thePresidency is expected and required to comply with the provi9ionsof the Constitution, including the eligibility requirements forthe presidency, and the laws of the United States and the SeveralStates thereof.

With the foregoing in mind, Petitioner would point out thatit was Respondent Obama, in fact, who initiated the submission ofhis name as a candidate to be listed on the Georgia DemocraticPresidential Ballot. Likewise, in accordance with his rightsunder Georgia law, Petitioner raised an administrative challengeto the Respondent's qualifications as a "natural born Citizen"pursuant to Article II of the United States Constitution.Respondent and his lawyer tried, unsuccessfully, to havePetitioner's challenge dismissed. Respondent was then legallyserved with a Notice to Produce, requiring him to appear at trialand to bring certain documents and items of evidence with him.The Respondent did not object.

When the time for trial was imminent, the Respondent'slawyer wrote a lett~r to the Georgia Secretary of State in whichhe boldly criticized and attacked the administrative law judge

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and in which he stated that he and his client were refusing tocome to court. The day of trial, when Respondent had no eventsor duties on his official public schedule, and after theSecretary of State had warned him that his failure to appearwould be at his own peril, the Respondent and his lawyernevertheless failed to appear for court and failed to comply withPetitioner's valid Notice to Produce. The Respondent thus notonly presented no evidence of his own as to his eligibility foroffice, but he failed to produce significant pieces of evidenceto which Petitioner was legally entitled.

In view of the foregoing misconduct and failings ofRespondent and his lawyer, and considering Respondent's totaldisregard of the laws of this State and the judiciary thereof, itappears that it is Respondent, and not Petitioner, who "ignore[s]procedural and evidentiary requirements," who is "in pursuit of apolitical agenda," and whose factual assertions - which he failsto support with any evidence - ar~ "based on fantasy."

Petitioner, far from seeking to "harass" anyone, is simplyavailing himself of lawful procedures under Georgia law in orderto properly raise and have finally determined the issue ofwheth~r Respondent, whose father was a foreign national and nevera United States citizen, is a "natural born Citizen" eligibleunder Article II of the Constitution for the Presidency of theUnited States. In that regard, Petitioner contends that the

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"natural born Citizen" requirement of Article II was intended toprevent anyone born with dual national citizenship and dualnational allegiances from holding the presidency and the ultimatecommand of this nation's military forces. It is thus nothingless than a matter of national security that the proper meaDlDgand construction of the "natural born Citizen" requirement, asset forth in Minor v. Happersett, 88 U.S. 162, 167, 22 L. Ed.627, 21 Wall. 162 (1875), be conclusively confirmed by theJudiciary.

I. SUBJECT-MATTER JURISDICTION

Seeking dismissal on the basis of a lack of subject-matterjurisdiction in this Court, Respondent first argues that FirstAmendment associational rights of a political party give theparty the exclusive right to determine whom to include aD itsPresidential Preference Primary ballot. While Respondentcontends that First Amendment associational rights of a party are"most often litigated" in the situation in which a party refusesto permit a name on a primary ballot (citing Democratic Party ofU.S. v. Wisconsin, 50 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82(1981); Duke v. Cleland, 954 F. 2d 1526 (11th Cir. 1992)), healso claims that "the reverse is also true" in that the party hasthe unchecked right to require certain names on its primaryballot. Respondent, however, cites no authority for the latterproposition. Moreover, none of the cases cited by Respondent are

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authority for the conclusion that a political party'sconstitutional associational rights deprive a state government ofits ability to require that candidates meet constitutional orstatutory eligibility requirements for office in order to beplaced on the state ballot ..

G.C.G.A. 21-2-5(b) and (c) authorize the GeorgiaSecretary of State, or an eligible Georgia elector, to challengea candidate's qualifications, and the Secretary of State isthereafter empowered to determine whether the candidate isqualified to seek and hold office. G.C.G.A. 21-2-5(e) gives anelector unsuccessfully challenging a candidate's qualificationsthe right to appeal the Secretary of State's decision by filing apetition in the Superior Court of Fulton County. Given thestate's right to run its own elections, nothing pertaining to theassociational rights of the Respondent's.political party deprivesthis Court of subject-matter jurisdiction in this matter.

Respondent also contends, however, that G.C.G.A. 21-2-5,the Georgia qualifications challenge statute, does not apply tothe Presidential Preference Primary and that this Court thereforedoes not have subject-matter jurisdiction. In this connection,Respondent points out that the definition of "election" found inG.C.G.A. 21-2-2(5) includes general or special elections, butnot a primary or special primary unless the context in which

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"election" is used "clearly requires" the inclusion of a primaryor special primary.

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

This chapter shall apply to any general orspecial election in this state to fill anyfederal, state, county, or municipal office,to any general or special primary to nominatecandidates for any such office, and to anyfederal, state, county, or municipal electionor primary for any other purpose whatsoever,unless otherwise provided.

Respondent further fails to realize that the qualificationschallenge statute, O.C.G.A. 21-2-5, grants a right to challengethe qualifications of "any candidate," regardless of the specifictype of election. Contestants in a Presidential PreferencePrimary 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 toRespondent. O.C.G.A. 21-2-5{b) provides, however, that achallenge of the qualifications of any candidate may be made "atany time prior to the election of such candidate," andRespondent's political party would presumably be filing acertification of his nomination prior to the general election.Petitioner additionally submits that "certified" and "notice ofcandidacy" are not specifically defined terms in the Georgia

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Election Code, and one could argue that the list of PresidentialPreference Primary candidates submitted by Respondent's politicalparty pursuant to D.C.G.A. 21-2-193 constituted a"certification" or a "notice of candidacy."

Accordingly, it is apparent that the Georgia qualificationschallenge statute does, in fact, apply to the PresidentialPreference Primary and that this Court does have subject-matterjurisdiction herein.

II. SERVICE OF SUMMONS

Respondent also seeks dismissal for the reason that "serviceof the summons and complaint was made by mailing to[RJespondent's 'attorney." Respondent claims that personalservice or a waiver thereof was required for a viable suit.

The case of Douglas Asphalt Co. v. Georgia Public ServiceCommission, 263 Ga. App. 711, 589 S.E. 2d 292 (2003) iscontrolling. In Douglas Asphalt, the Court held that in anappeal of an administrative decision of a state agency or othertribunal, personal service of the petition for judicial reviewupon the agency was not required, and service by mail was properto preserve the jurisdiction of the court. The Courtspecifically noted that service of appeals from an agencydecision is governed by O.C.G.A. 5-3-21, which provides inpertinent part that "[a] copy of the notice of appeal shall beserved on all parties in the same manner prescribed by Code

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Section 5-6-32." D.C.G.A. 5-6-32(a), in turn, provides inpertinent part that

Whenever under this article service or thegiving of any notice is required or permittedto be made upon a party and the party isrepresented by an attorney, the service shallbe made upon the attorney unless service uponthe party himself is ordered by the court.Service of all notices and other papershereunder and service of motions for newtrial, motions in arrest, motions forjudgment notwithstanding the verdict, and allother similar motions, orders, andproceedings may be made by the attorney orparty filing the notice or paper, in personor by mail, and proof thereof shown by'acknowledgment of the attorney or partyserved, or by certificate of the attorney,party, or other person perfecting service.

Therefore, in the instant case, service of the Petition uponRespondent Dbama by mailing same to his attorney was inaccordance with Georgia law. Petitioner notes in passing,however, that even if the service by mail were for any reason notconsidered proper, D.C.G.A. 5-3-21(b) states in pertinent partthat ~[f]ailure to perfect service on any party shall not workdismissal, but the superior court shall grant continuances andenter such other orders as may be necessary to permit a just andexpeditious determination of the appeal."

III. STATEMENT OF CLAIM AGAINST RESPONDENT

Respondent finally requests dismissal because ~[t]he properparty when challenging a decision made by the Secretary of Stateis the Secretary of State." Respondent states such contention

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with no citation of authority whatsoever. Nevertheless,Respondent goes on to claim that Petitioner's action does notseek any relief against Respondent, but only against theS~cretary of State. Respondent further'contends that there is alack of personal jurisdiction over the Secretary of State, as"[nlo summons commands appearance by the Secretary of State inthis matter."

Beginning with,the latter issue of "summons," Respondent'slegal ,analysis is flawed. O.C.G.A. 21-2-5(e) makesplain thatPetitioner's Petition For Judicial Review is an appeal from thedecision of the Secretary of State; it is not an original civilaction. The only reference to service of the Petition inO.C.G.A. 21-2-5(e) states that "[als soon as possible afterservice of the petition, the Secretary of State shall transmitthe original or a certified copy of the entire record ...to thereviewing court." Nowhere in this statute is "summons" requiredor even mentioned.

Likewise, O.C.G.A. 5-3-21(b) provides in pertinent partthat "[a] copy of the notice of appeal shall be served on allparties ...." Again, nowhere in the stat.ute is "summons" requiredor even mentioned.

Furthermore, in Douglas Asphalt, 263 Ga. App. at 711-712,the state agency was served with the petition by mail, with nosummons atall. The Court affirmed the judgment of the superior

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court which denied the agency's motion to dismiss. The motion todismiss had been based upon an allegation of failure to perfectpersonal service.

As for his role herein, the Secretary of State is not aproper party to this petition. In this appeal, the Secretary ofState is essentially in a quasi-judicial role, akin to a lowercourt. The challenge to Respondent's qualifications was notbrought by the Secretary of State, but by Petitioner. Petitionerand Respondent were the named parties below, and Respondent (atleast up until trial) defended the challenge; the Secretary ofState did not defend the challenge in any manner. The entitywith an interest at stake in this challenge was Respondent, notthe Secretary of State.

Under these circumstances, Petitioner's challenge was not adispute between Petitioner and the Secretary of State (i.e. theagency). The challenge was a dispute between Petitioner andRespondent, and same was merely adjudicated by the Secretary ofState. The instant Petition does therefore state a claim againstRespondent.

The items of relief sought by Petitioner in the instantaction are a reversal of the Final Decision of the Secretary ofState, a finding that Respondent does not meet the Article II"natural born Citizen" requirement for the presidency, a removalof Respondent's name from the ballot, an order adjudging

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Respondent in contempt of court for his deliberate failure tocomply with Petitioner's Notice to Produce in the administrativeproceedings; and conditionally, a postponement of thePresidential Preference Primary Election. Should the requestedrelief be granted by this Court, such would be primarily grantedin the form of an order reversing the Final Decision of theSecretary of State with direction to the Secretary of State as tothe appropriate remedy to be crafted, in much the same mannerthat the Court of Appeals or Supreme Court would reverse asuperior court judgment with direction. The Secretary of Statesimply does not need to be a party in order to accomplish thisCourt's granting of the requested relief, and none of theapplicable statutes require the Secretary of State to be named orconsidered a party.

Petitioner further notes that Respondent's citation toHandel v. Powell, 284 Ga. 550 (2G08) is misplaced, as theSecretary of State there personally brought the challenge to acandidate's qualifications. There was no challenge filed by anelector, as in Petitioner's instant case. Powell, the candidate,filed the petition for judicial review, and Powell and theSecretary of State were-the only two (2) parties in both theinitial challenge and the appeal to superior court.

Petitioner again notes in passing, however, that even if theSecretary of State were for any reason deemed to be a necessary

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party to this appeal who had not been properly served, O.C.G.A. 5-3-21(b) states in pertinent part that "[fJailure to perfectservice on any party shall not work dismissal, but the superiorcourt shall grant continriances and enter such other orders as maybe necessary to permit a just and expeditious determination ofthe appeal.H

CONCLUSIONFor the above and foregoing reasons, Petitioner respectfully

requests that Respondent's Motion to Dismiss be denied.Respectfully submitted, this 2nd day of March, 2012.

HATFIELD & HATFIELD, P.C.

ney for Pe tionerGeorgia Bar No. 337509

201 Albany AvenueP.O. Box 1361Waycross, Georgia 31502(912) 283-3820

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CERTIFICATE OF SERVICEI, J. Mark Hatfield, Attorney for Petitioner, do hereby

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

Mr. Michael K. JablonskiAttorney at Law2221-D Peachtree Road NEAtlanta, Georgia 30309Honorable Brian P. KempSecretary of StateState of Georgia214 State CapitolAtlanta, Georgia 30334

by placing a copy of same in the United States Mail in a properlyaddressed envelope with sufficient postage affixed thereto inorder to insure proper delivery, and by emailing same to Mr.Jablonski at [email protected] and by emailing sameto Secretary Kemp at [email protected].

This 2nd day of March, 2012.HATFIELD & HATFIELD, P.C.

At orney for PGeorgia Bar No.

201 Albany AvenueP.O. Box 1361Waycross, Georgia 31502(912) 283-3820
mailto:[email protected]:[email protected].

swensson v obama, petitioner's response to respondent's motion to dismiss, fulton county superior...

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