Swensson v Obama, Application for Discretionary Appeal, Georgia Supreme Court, 3-13-2012

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

1/90


2/90

CARL SWENSSON,Applicant

IN THE SUPREME COURTSTATE OF GEORGIA

*

*

V.BARACK OBAMA,

Respondent

*

*

*

CASE NO.

APPLICATION FOR DISCRETIONARY APPEALNow comes AppL_cant Carl Swensson, by and through

undersigned counsel" and respectfully applies to this Courtpursuant to O.C.G.A, 5-6-35(a) (1) and 21-2-5(e) for leave tofile a discretionar~T appeal from the Superior Court of FultonCounty's "Order Grarrting Respondent Barack Obama's Motion toDismiss," which was entered and filed on March 2, 2012, inApplicant's Fulton ~3uperior Court action appealing a FinalDecision of Georgia Secretary of State Brian P. Kemp denyingApplicant's challeneJe to the qualifications of Respondent BarackObama, a presidenti2il candidate, to seek and hold the Office ofthe President of th(~United States, and finding Respondent Obamaeligible as a candidate for the presidential primary election.

Applicant resp(~ctfully shows to the Court that he isattaching hereto: as Exhibit "A" a copy of the aforesaid "OrderGranting Respondent BarackObama's Motion to Dismiss"; as Exhibit"B" a copy of the "Petition For Judicial Review" filed by

Page -1-


3/90

Applicant in the Superior Court of Fulton County on February 15,2012; as Exhibit "c" a copy of Applicant's "Motion For ExpeditedReview or, Alternatjvely, For Stay of Decision of Secretary ofState and For Postponement of Presidential Preference PrimaryElection" filed on I'ebruary 22, 2012; as Exhibit "0" a copy ofRespondent Barack Obama's "Motion to Dismiss" and Brief inSupport thereof sen,'ed on February 27, 2012; as Exhibit "E" acopy of Applicant's "Response to Respondent's Motion to Dismiss"submitted to and accepted by the Superior Court of Fulton County,as per the Court's llermission and instructions, by email on March2, 2012 and thereafter stamped as filed on March 5, 2012; and asExhibit "F" a copy of a letter dated January 25, 2012 fromRespondent's attorney to Secretary of State Brian P. Kemp.

PART ONESTATEMENT OF THE CASE

1. TYPE OF CJ~E. This case is an Application ForDiscretionary Appeal 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 Courtof Fulton County di~,missing Applicant's "Petition For JudicialReview" of a Final Decision of Georgia Secretary of State BrianP. Kemp denying Applicant's challenge to the qualifications of

Respondent Obama, a presidential candidate, to seek and hold theOffice of the President of the United States, and findingRespondent Obama eli,gible as a candidate for the presidentialprimary election.

Page -2-


4/90

2. SUPREME COURT JURISDICTION. The Supreme Court hasjurisdiction 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 1983Constitution of the State of Georgia, Article VI, Section VI,Paragraph II, as this case draws into question theconstitutionality o~~ O.C.G.A. 21-2-5 as applied to PresidentialPreference Primarie~;, and as this case involves the constructionof the "natural borrl Citizen" presidential eligibilityrequirement of Artic:le II, Section I, Clause 5 of the UnitedStates Constitution" and this case thus falls within this Court'sexclusive appellate jurisdiction.

3. JUDGMENT l!lPPEALEDAND DATE OF ENTRY. The SuperiorCourt of Fulton County's "Order Granting Respondent BarackObama's Motion to Dj.smiss" was entered and filed on March 2,2012.

4. STATEMENT OF FACTS. On or before October 31, 2011,Respondent Barack Ollama submitted a letter to the ExecutiveCommittee of the Democratic Party of Georgia seeking to be listedon the Georgia Democ:ratic Presidential Preference Primary Ballot.Consequently, on November 1, 2011, Georgia Democratic PartyChairman Mike Berlorl submitted, pursuant to O.C.G.A. 21-2-193,the name of RespondE!nt Obama to the Georgia Secretary of State'sOffice as a candidate to be listed on the Georgia DemocraticPresidential Preference Primary Ballot.

Page -3-


5/90

Thereafter, pu::suant to O.C.G.A. 2l-2-5(b), ApplicantSwensson, a resident: of Clayton County, Georgia and a registeredvoter in the State ()fGeorgia and an elector eligible to vote forcandidates for the Presidency of the United States, timely filedwith the Georgia Se(:retary of State a written challenge to thequalifications of RE~spondent to seek and hold the Office of thePresidency of the United States. Applicant contended thatRespondent does not meet the "natural born Citizen" eligibilityrequirement of Arti(:le II, Section I, Clause 5 of the UnitedStates Constitution"

As prescribed by O.C.G.A. 21-2-5(b), the Office of theSecretary of Statel:eferred Applicant's challenge to anadministrative law judge (hereinafter "ALJ") of the Office ofState Administrativ(~ Hearings (hereinafter "OSAH"). Thereafter,pursuant to proper llotice to all parties, the ALJ conducted ahearing on January 26, 2012.

Applicant was present at trial and submitted into therecord, through cou:lsel, evidence and testimony pertaining to theissues raised by hi:3 challenge. However, despite being timelyserved with a Notici3 to Produce by Applicant's counsel requiringRespondent to persollally appear for trial and to bring with himcertain documents for use as evidence by Applicant at trial,Respondent failed to appear for trial on January 26, 2012.Likewise, Responden:'s attorney also failed to appear for trial.

Page -4-


6/90

No evidence or test:Lmony whatsoever was introduced into therecord by or on beh~llf of Respondent at trial. The failure ofRespondent and his attorney to appear for trial on January 26,2012 was knowing anci intentional, as demonstrated by a January25, 2012 letter wri1:ten by Respondent's attorney to GeorgiaSecretary of State Brian P. Kemp (Exhibit "F").

Applicant's ev__ence at trial established that Respondent'sfather, Barack HussE!in Obama, was born in Kenya and was a subjectof Great Britain. Additionally, Applicant established thatRespondent's afores~lid father, Barack Hussein Obama, was not acitizen of the United States as of the date of birth ofRespondent in 1961 or at any other time whatsoever.

Nevertheless, on February 3, 2012, the ALJ issued an initialDecision finding Re~3pondent eligible as a candidate for thepresidential primary election. Pursuant to O.C.G.A. 21-2-5(b),the ALJ's Decision ~las reported to the Secretary of State.Subsequently on Feb::uary 7, 2012, pursuant to O.C.G.A. 21-25(c), Georgia Secretary of State Brian P. Kemp issued a FinalDecision adopting the initial Decision of the ALJ and denyingApplicant's challenqe.

On February 151 2012, pursuant to O.C.G.A. 21-2-5(e),Applicant timely fL_ed in the Superior Court of Fulton County a"Peti tion For Judic_al Review" appealing and seeking judicialreview of the Secre+:ary of State's Final Decision (Exhibit "8")

Page -5-


7/90

Applicant's Petitioll also requested that the Court grant anexpedited hearing alld review of the case due to the fact that theGeorgia Presidentia:_ Preference Primary Election was scheduled totake place less than three (3) weeks later, on March 6, 2012. Ina further effort to obtain some action by the Court in advance ofthe election date, J\pplicant then filed, on February 22, 2012, a"Motion For Expedi t(;d Review or, Alternati vely, For Stay ofDecision of Secretary of State and For Postponement ofPresidential Preference Primary Election" (Exhibit "C")

On February 27, 2012, counsel for Respondent served a"Motion to Dismiss" and Brief in Support thereof in whichRespondent argued ttlat the Court lacked jurisdiction over thesubject matter; that: there was a failure of service of process;and that Applicant'~3 Petition failed to state a claim upon whichrelief could be granted (Exhibit "0").

On March 1, 20_2, the Court notified counsel for Applicantby email that, if AIJplicant wished to respond to Respondent's"Motion to Dismiss," counsel would have until the followingmorning, March 2, 2()12 at 9:30 a.m., to do so (Exhibit "E," pp.16-17). Counsel fOJ~Applicant thereafter submitted to the Court,by the aforesaid de2idline, Applicant's "Response to Respondent'sMotion to Dismiss" (Exhibit "E," p. 14), and the Courtacknowledged receip1: of same in an email sent at 8:30 a.m. on themorning of March 2, 2012 (Exhibit "E," p. 15). Just over two and

Page -6-


8/90

one-half (2~) hours later, the Court emailed its file-stamped"Order Granting ReSI)Ondent Barack Obama's Motion to Dismiss"(Exhibit "A," pp. 1-2).

PART TWOENUMERATION OF ERRORS

1. The Super_or Court erred in holding that O.C.G.A. 21-2-5 does not apply ~_n the context of a challenge to thequalifications of a candidate in the Presidential PreferencePrimary.

2. The Superior Court erred in holding O.C.G.A. 21-2-5unconstitutional as applied to a challenge to the qualificationsof a candidate in the Presidential Preference Primary.

3. The Superior Court erred in holding that Applicantfailed to perfect sE!rvice and in dismissing Applicant's actionbased upon a findinq of failure to perfect service.

4. The Super~or Court erred in failing to reverse theFinal Decision of the Secretary of State on the basis of theALJ's and the Secret.ary of State's errors in failing to determinethe proper placement of the burden of proof and in failing toapply such determinc,tion in ruling upon Applicant's challenge.

5. The Superior Court erred in failing to reverse the

Final Decision of t:he Secretary of State on the basis of theALJ's and the Secret.ary of State's errors in finding as "fact"that Respondent was born in the United States and that

Page -7-


9/90

Respondent's mother was a citizen of the United States at thetime of Respondent':3 birth.

6. The Super __r Court erred in failing to reverse theFinal Decision of tlle Secretary of State on the basis of theALJ's and the Secre1:ary of State's error in finding thatRespondent qualifie~3 as a "natural born Citizen" pursuant toArticle II of the Ullited States Constitution, despite the factthat Respondent's f2ither was not a United States citizen at thetime of Respondent':3 birth.

PART THREEARGUMENT AND CITATION OF AUTHORITY

Applicant would note at the outset that this Court's Rule34, concerning the :3tandard for granting discretionary appeals,provides in pertinent part that "[a]n application for leave toappeal a final judgrlent [pursuant to] O.C.G.A. 5-6-35 shall begranted," among othE!r instances, when " [r]eversible error appearsto exist" or when" :t]he establishment of a precedent isdesirable."

In the instant case, as set forth hereinbelow, the SuperiorCourt, as well as tlle ALJ and the Secretary of State, made anumber of reversiblE! errors. Additionally, as this case raises

significant issues J:egarding the State of Georgia's authority toscreen the qualifications of presidential contenders, and asthese issues are ceJ:tainly capable of being raised with regard to

Page -8-


10/90

future presidential candidacies, the establishment of a precedentis both necessary and desirable.

1. The Super::LorCourt erred in holding that o.C.G.A. 21-2-5 does not apply :in the context of a challenge to thequalifications of a candidate in the Presidential PreferencePrimary.

The Superior Cc)urt held that O.C.G.A. 21-2-5, the Georgiaqualifications chal.enge statute, does not apply to thePresidential Preference Primary, as the Presidential PreferencePrimary apportions delegates, but does not result in thenomination or elect::.onof a presidential candidate. The Courtalso found that Respondent is not yet a "candidate" for thePresidential Electic)n, and that the Presidential PreferencePrimary is not an "E!lection" within the meaning of the GeorgiaElection Code. In this connection, Respondent contended beforethe Superior Court t:hat the definition of "election" found inO.C.G.A. 21-2-2(5) includes general or special elections, butnot a primary or spE!cial primary unless the context in which"election" is used "clearly requires" the inclusion of a primaryor special primary.

The Superior Court and Respondent overlooked, however, theprovisions of O.C.G.A. 21-2-15 inasmuch as

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

Page -9-


11/90

to any general or special primary to nominatecandidate:3 for any such office, and to anyfederal, :3tate, county, or municipal electionor primary for any other purpose whatsoever,unless otherwise provided.

Also, the qual~_fications challenge statute, O.C.G.A. 21-2-5, grants a right tC)challenge the qualifications of "anycandidate," regardlE~ss of the specific type of election. Despitethe Superior Court'~3 finding to the contrary, contestants 1n aPresidential PreferE~nce Primary are specifically designated bystatute as "candidat~es." O.C.G.A. 21-2-193.

Respondent alsc) argued in the Court below that a "candidate"must be "certified by the state executive committee of apolitical party" or must submit "a notice of candidacy," seeO.C.G.A. 2l-2-5(a:, and that neither of such conditions havetaken place as to Respondent. O.C.G.A. 21-2-5 (b) provides,however, that a cha:_Ienge of the qualifications of any candidatemay be made "at any time prior to the election of suchcandidate," and ReSI)ondent's political party would presumably befiling a certificat~_on of his nomination prior to the generalelection. Addition2llly, Applicant submits that "certified" and"notice of candidac~1" are not specifically defined terms in theGeorgia Election Code, and one could argue that the list ofPresidential PreferE~nce Primary candidates submitted byRespondent's politic:al party pursuant to O.C.G.A. 21-2-193constituted a "cert:~fication" or a "notice of candidacy."

Page -10-


12/90

Accordingly, i1:is apparent that the Georgia qualificationschallenge statute does, in fact, apply to the PresidentialPreference Primary; that the Superior Court did properly havesubject-matter jurifldiction of Applicant's Petition; and that theSuperior Court comm:_tted reversible error in holding otherwise.

2. The Superior Court erred in holding O.C.G.A. 21-2-5unconstitutional as applied to a challenge to the qualificationsof a candidate in the Presidential Preference Primary.

The Superior Court also granted dismissal for lack ofsubject-matter juri~;diction based upon Respondent's argument thatFirst (and Fourteenth) Amendment associational rights of apolitical party giVE! the party the exclusive right to determinewhom to include on j.ts Presidential Preference Primary ballot.

While Respondent contended that First Amendmentassociational right~; of a party are "most often litigated" in thesituation in which ~l party refuses to permit a name on a primaryballot (citing Democratic Party of U.S. v. Wisconsin, 50 U.S.107, 101 S. Ct. 101U, 67 L. Ed. 2d 82 (1981); Duke v. Cleland,954 F. 2d 15:26 (11th Cir. 1992)), he also claimed that "thereverse is also trUE!" in that the party has the unchecked rightto require certain names on its primary ballot. Respondent,however, cited no allthority for the latter proposition.

The Superior CClurt essentially adopted Respondent'sargument, as the COllrt held that the Secretary of State may not

Page -11-


13/90

interfere with a po~_itical party's determination of itscandidates, and the Secretary's authority is limited to examiningpresidential electoJ~s. However, none of the cases or statutescited by the Superic)r Court or by Respondent are authority forthe conclusion that a political party's constitutionalassociational right~; deprive a state government of its ability torequire that candid~ltes meet constitutional or statutoryeligibility requiren~nts for office in order to be placed on thestate ballot.

In point of fac:t, O.C.G.A. 21-2-5(b) and (c) authorizethe Georgia Secretal:y of State, or an eligible Georgia elector,to challenge a candj.date's qualifications, and the Secretary ofState is thereafter empowered to determine whether the candidatelS qualified to seek and hold office. O.C.G.A. 21-2-5(e) givesan elector unsucces~;fully challenging a candidate'squalifications the l:ight to appeal the Secretary of State'sdecision by filing ~lpetition in the Superior Court of FultonCounty. Given the ~;tate's right to run its own elections,nothing pertaining to the associational rights of theRespondent's politic:al party deprived the Superior Court ofsubject-matter jurisdiction over Applicant's case, and theSuperior Court comm:_tted error in holding otherwise.

Page -12-


14/90

3. The Superior Court erred in holding that Applicantfailed to perfect sll~rvice and in dismissing Applicant's action

based upon a findinc;rof failure to perfect service.The Superior Court also ruled that, even if the Court

properly had jurisd:_ction pursuant to O.C.G.A. 21-2-5,Applicant "failed entirely to perfect personal service uponRespondent(s) as recIuired by O.C.G.A. 21-2-5(e) and O.C.G.A. 9-11-4. The Superic)r Court apparently believed Applicant's caseto be subject to dimnissal for the reason argued by Respondentthat "service of the summons and complaint was made by mailing to[R]espondent's attorney." Respondent claimed that personalservice or a waiver thereof was required for a viable suit.

However, the C2lse of DouGlas Asphalt Co. v. GeorGia PublicService Commission, 263 Ga. App. 711, 589 S.E. 2d 292 (2003) iscontrolling. In DouGlas Asphalt, the Court held that in anappeal of an adminL,trative 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 t:hat service of appeals from an agencydecision is governec! by O.C.G.A. 5-3-21, which provides lnpertinent part that "[a] copy of the notice of appeal shall beserved on all partiE!s in the same manner prescribed by Code

Page -13-


15/90

Section 5-6-32." O,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 mad(~ 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 sim:_Iar motions, orders, andproceedinqs may be made by the attorney orparty fiL_ng the notice or paper, in personor by mai:_, and proof thereof shown byacknowledcJment of the attorney or partyserved, 0::: by certificate of the attorney,party, or other person perfecting service.

Therefore, in 1:he instant case, service of the Petition uponRespondent Obama by mailing same to his attorney was inaccordance with Geo::gia law.

Applicant further notes, however, that even if the serviceby mail were for an~1 reason not considered valid, O.C.G.A. 5-3-21(b) states in pert:inent part that "[f]ailure to perfect serviceon any party shall flotwork dismissal, but the superior courtshall grant continu2lnces and enter such other orders as may benecessary to permit a just and expeditious determination of theappeal." Dismissal based upon the issue of service was thereforeinappropriate, and t:he Superior Court erred to the extent thatits dismissal was b2lsed upon failure to perfect service.

Page -14-


16/90

4. The Superior Court erred in failing to reverse theFinal Decision of the Secretary of State on the basis of theALJ's and the Secre'i:aryof State's errors in failing to determinethe proper placemen'l:of the burden of proof and in failing toapply such determina.tion in ruling upon Applicant's challenge.

In dismissing ]~pplicant's Petition For Judicial Review, theSuperior Court failed to address the ALJ's complete failure tomake a determinatiolr as to the proper placement of the burden ofproof as between the parties, as well as the ALJ's failure toapply the burden of proof to his factual and legal conclusions.

On January 19, 2012, Applicant filed a "Motion ForDetermination of Placement of Burden of Proof" in which he soughtan order, pursuant t:oHavnes v. Wells, 273 Ga. 106, 108-109, 538S.E. 2d 430, 433 (2()00),requiring Respondent to affirmativelyestablish his eligillility for office. Not only did the ALJ notrule on Applicant's motion in advance of trial, as was requestedby Applicant, but tile judge never even addressed or resolved themotion in his final ruling.

OSAH Rule 616-:.-2-.07(1) provides that, with certainexceptions not appl~_cable herein, "[t]he agency shall bear theburden of proof in ~lllmatters." Further, OSAH Rule 616-1-2.07(2) states that, "[p]rior to the commencement of the hearing,the Administrative JJaw Judge may determine that law or justicerequires a different: placement of the burden of proof."

Page -15-


17/90

The challenge 1:0 Respondent's qualifications herein was notinitiated by the apIJlicable agency, the Office of the Secretaryof State. Rather, the challenge was commenced by Applicant,pursuant to O.C.G.A, 2l-2-5(b), "by filing a written complaintwith the Secretary ()f State .... " Upon the filing of Applicant'schallenge, the Secr(~tary of State was required as a matter ofprocedure, also pUr!lUant to O.C.G.A. 21-2-5(b), to refer thechallenge to the OSAH for a hearing.

Prior to the t]~ial before the ALJ, the "agency," i.e. theOffice of the Secret:ary of State, made no determination ofcandidate qualificat:ions; issued no decision; and was not a partyto the challenge, arid it would have therefore been inappropriatefor the agency to bear the burden of proof as initially suggestedby OSAH Rule 616-1-;:-.07(1). The burden of proof therefore musthave been placed eit:her with Applicant (i.e., to prove Respondentineligible) or with Respondent (i.e., to prove himself eligible).However, under Havnes, 273 Ga. at 108-109, Applicant was notrequired, and shoulci not be required, "to disprove anythingregarding [Responderit Obama's] eligibility to run for office .... "rd.

The significan(:e of the ALJ's failure to rule on the burdenof proof is immediately apparent. Respondent and his lawyerfailed to attend tr~_al and failed to offer any evidence, and suchfailures were intent:ional, as shown by Respondent's counsel's

Page -16-


18/90

letter of January 2~j,2012 (Exhibit "F"). If Respondent did, asApplicant contends, bear the burden of proof at trial, thenRespondent can in nClway be said to have satisfied his burden,and Applicant was erltitled to judgment. Thus, the failure of theSuperior Court to rE!VerSe the Secretary of State, and the ALJ, onthe basis of their j~ailure to address the burden of proof isreversible error.

5. The Super:i.orCourt erred in failing to reverse theFinal Decision of the Secretary of State on the basis of theALJ's and the Secrei!:aryof State's errors in finding as "fact"that Respondent was born in the United States and thatRespondent's mother was a citizen of the United States at thetime of Respondent'B birth.

The ALJ's rulirlg, and consequently the Secretary of State'sruling, on Applicant:'s challenge to Respondent's qualificationsrelied upon certain alleged "facts" which the ALJ said he"considered." Specj_fically, the ALJ found as "fact": 1) thatRespondent Obama waf;born in the United States; and 2) thatRespondent Obama's rwther was a citizen of the United States atthe time of RespondE!nt's birth.

However, as set: forth hereinabove, Respondent carried theburden of proving h:_s eligibility for office. Inasmuch asRespondent and his attorney did not appear for trial and did notoffer any evidence \Jhatsoever, and inasmuch as the "natural born

Page -17-


19/90

Citizen" requirement: for presidential eligibility mandates anexamination of Respondent's place of birth and the citizenship ofboth of Respondent'~) parents at the time of Respondent's birth(as is explained he::einbelow), Respondent failed to carry hisburden of proof as to his eligibility, and the above "facts"found by the ALJ wel:e legally unsupported. The Superior Court'sfailure to reverse t:he Secretary of State, and the ALJ, withregard to these findings of "fact" is reversible error.

6. The Superior Court erred in failing to reverse theFinal Decision of the Secretary of State on the basis of theALJ's and the Secre1:;aryof State's error in finding thatRespondent qualifief:: as a "natural born Citizen" pursuant toArticle II of the United States Constitution, despite the factthat Respondent's fc:Ltherwas not a United States citizen at thetime of Respondent'f:1birth.

The ALJ's (and subsequently the Secretary of State's) rulingwas grounded in the ALJ's adoption of the non-binding reasonlngof the Indiana Court. of Appeals in Ankenv v. Governor of Indiana,916 N.E. 2d 678 (20(19), with regard to the ALJ's finding that aperson qualifies as a natural born citizen if he was born in theUnited States becaw:e he became a United States citizen at birth.

Although, as pc,inted out hereinabove, there was absolutelyno evidence whatsoe\"er submitted by Respondent at trial to carryhis burden of proof and establish Respondent's place of birth,

Page -18-


20/90

the ALJ's ruling that a person's birth in the United Statesautomatically confe::s the status of "natural born Citizen"pursuant to Article II of the United States Constitution isunfounded; is an inc:orrect statement of the applicable law; andis contrary to the l:uling of the United States Supreme Court inMinor v. Happersett, 88 U.S. 162, 167, 22 L. Ed. 627, 21 Wall.162 (1875).

Minor is bindirlg authority for the proposition that theArticle II phrase "natural born Citizen" refers to a person bornin the United State~: to two (2) parents who were then (at thetime of the child's birth) themselves United States citizens.Because, as Applicar.t's undisputed evidence at trialdemonstrated, Respordent Obama's father was not a United Statescitizen at the time of Respondent's birth, Respondent does notmeet the Article II "natural born Citizen" requirement for thepresidency, and the ALJ and the Secretary of State committederror in finding ott.erwise. The Superior Court thus likewisecommitted reversiblE error in failing to reverse the ALJ and theSecretary of State cn this issue.1

CONCLUSION

For the above and foregoing reasons, Applicant respectfullyrequests that the SLpreme Court grant this Application For

IThis issue will be more fully briefed by Applicant upon the granting of this ApplicationFor Discretionary Appeal.

Page -19-


21/90

Discretionary Appeal and review and reverse the decision of theSuperior Court in t:lis case.

Respectfully submitted, this 12th day of March, 2012.HATFIELD & HATFIELD, P.C.

ark Hatfic\fd \t~rney for Ap~cantGeorgia Bar No. 337509201 Albany AvenueP.O. Box 1361Waycross, Georgia 3J502(912) 283-3820

Page -20-


22/90

CERTIFICATE OF SERVICE

I, J. Mark Hat:~ield, Attorney for Applicant, do herebycertify that I have this day served the foregoing Application ForDiscretionary Appea:_ upon:

Mr. Michael K. JablonskiAttorney at Law2221-0 Peachtree Road NEAtlanta, Georgia 30309Honorable Brian P. KempSecretary of StateState of Georgia214 State CapitolAtlanta, Georgia 30334

by placing a copy o~: same in the United States Mail in a properlyaddressed envelope ~lith sufficient postage affixed thereto inorder to insure prO[ler delivery, and by emailing same to Mr.Jablonski at michae][email protected], and by emailing sameto Secretary Kemp at vrusso@sos. CB. GOV.

This 12th day of March, 2012.HATFIELD & HATFIELD, P.C.

201 Albany AvenueP.O. Box 1361Waycross, Georgia 3J.502(912) 283-3820


23/90

Mark HatfieldFrom:Sent:To:

Subject:

Attachments:

DOC006.pdf (563KB)

White, Con nie [[email protected]]Friday, Mar~h 02, 201211:04 AMdavid. [email protected]; codyj [email protected]; [email protected];van@/ibertylegalfoundation.org; [email protected]; [email protected];[email protected]; [email protected] Gran-:ing Respondent Barack Obama's Motion(s) to Dismiss-2012cv211398,2012cv211b27, 2012cv211528, 2012cv211537DOC006.pdf

Hello,Please find attached a stamp filed copy of the Order Granting Respondent Barack Obama'sMotion(s) to Dismiss 2012cv211398, 2012cv211527, 2012cv211528, 2012cv211537 from JudgeWright's office.Thank you,Connie White

PLAINTIFF'S t~ EXHIBIT$) ,UI,)7\~---

1


24/90

@~\1rED INOFFICi \~AR 2.1011 . ~DEPUTY CLERK SUPERIOR COURT

N COUNTY. GA ~~

IN TIlE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA*

, CODY*** * *CNILACTION* FILE NO. 2012 ** **

A

CARL SWENSSON**

* **CNILACTION*

FILE NO. 2012CV211527** **

KEVIN RICHARD POWELL,

** *

*CNILACTION*

FILE NO. 2012CV211528** **

Farrar, et al. v. Ohama, et al: Civil Action No. 2012CV211398Sw en sson v. Oba ma : Civil Action No. 2012CV211527Pow ell v. Oba ma : Civil Action No. 2012CV211528Welden v. Obama: Civil Action No. 2012CV211537ORDER GRANTING MOTION(S) TO DISMISS Page 1


25/90

DAVIDP. WELDEN**

* **CNILACTION*

FILE NO. 2012CV211537** **

ORDER GRANTING ]!illSPONDENT BARACK OBAMA'S MOTION(S) TO DISMISSThe above-captioned actions are before the Court on the Petition(s) for Judicial Review

of Petitioners David Farrar, et al., Carl Swensson, Kevin Richard Powell, and David P. Welden,which were filed in this Court on February 13, 2012 and February 15, 2012, respectively.Although initially assignl~d to four (4) different Superior Court Judges, the matters weretransferred to the Honorable Chief Judge Cynthia D. Wright, to whom the fust-filed case wasassigned (Farrar, et al. v. Obama, et aI., Civil Action File No. 2012CV211398), because each isan appeal of the same decil:ion issued on February 3,2012 by Administrative Law Judge MichaelM. Malihi in the Office of State Administrative Hearings and thereafter adopted by the Secretaryof State.

Presently before the Court is the Motion to Dismiss of Respondent Barack Obama, filedin each of the above-referl~nced actions on February 27, 2012. The Motion(s) to Dismiss areidentical in form and substance and will, therefore, be addressed by the Court in oneconsolidated Order to be applied in each case. Now, having considered the Motion(s) toDismiss, the other pleading:;; of record, and applicable Georgia law, the Court fmds as follows:

Petitioners filed thdr Appeal/Petition for Judicial Review of the Secretary of State'sdecision in this Court pursUimt to O.C.G.A. 21-2-5(e), which provides as follows:

Farrar, et al. v. Obama, et al: CivilAction No. 2012CV211398Swensson v. Obama: CivilAction No. 2012CV211527Powell v. Obama: CivilAction No. 2012CV211528Welden v. Obama: Civil Action No. 2012CV211537ORDERGRANTINGMOTION(S)TO DISMISS Page 2


26/90

The elector filing the challenge or the candidate challenged shallhave the rlght to appeal the decision of the Secretary of State byfiling a petition in the Superior Court of Fulton County within tendays after the entry of the final decision by the Secretary of State.The filing of the petition shall not itself stay the decision of theSecretary of State; however, the reviewing court may order a stayupon appropriate terms for good cause shown. As soon as possibleafter servi,: e of the petition, the Secretary of State shall transmit theoriginal or a certified copy of the entire record of the proceedingsunder review to the reviewing court. The review shall beconducted by the court without a jury and shall be confined to therecord.

Petitioners allege that Respondent Barack Obama is not a "natural born citizen"! and,thus, is not qualified for candidacy in Georgia's 2012 Presidential Primary. Despite itsapplication in the court be low, this Court does not believe that a.c.G.A. 21-2-5 applies in thiscase because the challenge at issue involves the Presidential Preference Primary, which by itsterms, is an opportunity for electors "to express their preference for one person to be a candidatefor nomination." O.C.G.A. 21-2-191. The Presidential Preference Primary apportionsdelegates, but neither elects nor nominates candidates for the Presidency. Therefore, becauseRespondent Barack abama is not yet a "candidate" for the Presidential election in question andbecause the Presidential Prderence Primary is not an "election" within the meaning of O.C.G.A. 21-2-1, et seq., O.C.G.A. 21-2-5 does not apply. See a.c.G.A. 21-2-2(5) and 21-2-5.

Moreover, it is well established in Georgia as elsewhere in the United States that votersvote on "presidential electors," rather than voting directly for a candidate, when voting for theOffice of President of the lJnited States. O.C.G.A. 21-2-172. The political parties' candidatesfor President are determined by convention of the political party. See a.c.G.A. 21-2-191 to

1 Petitioners claim is based, inpa:lt, on a contention that at the time of his birth, Respondent's father was not acitizen of the United States.Farrar, et al. v. ahama, et a/:Civil Action No. 2012CV211398Swensson v. Obama: Civil Action No. 2012CV211527Powell v. ahama: CivilAction No. 2012CV211528Welden v.ahama: CivilAction No. 2012CV211537ORDER GRANTING MOTION(S) TO DISMISS Page 3


27/90

21-2-200. In the case of a democratic candidate for President, the Democratic Party of Georgiahas the sole discretion to determine the qualifications of potential candidates and the name(s) tobe included on its Presidential Preference Primary ballot. O.c.G.A. 21-2-193; see Duke v.Cleland, 954 F.2d 1523 (l1th Cir. 1992); Duke v. Cleland, 884 F. Supp. 511, 515-16 (N.D. Ga.1995).

The Secretary of State is prohibited by the Fourteenth Amendment of the United StatesConstitution and Georgia statutory law from infringing on the associational rights of theDemocratic Party of Georgia and is limited in its authority to examining presidential electors.O.c.G.A. 21-2-172 to 21-2-200; Duke v. Cleland, 884 F. Supp. at 515-16 (N.D. Ga. 1995).Even if the Secretary of State believes that a challenger's claims are valid, the Secretary of Statemay not interfere with a political party's internal decision-making. rd.

Based upon Georgia law and governing precedent, the Court finds it has no authority toexercise jurisdiction over the Democratic Party of Georgia's selection of the names(s) to beincluded in the Presidential Preference Primary or to examine the qualifications of thoseindividuals. Therefore, the"e actions should be DISMISSED in accordance with a.C.G.A. 9-11-12(b).

Additionally, evenlf the Court had determined that O.C.G.A. 21-2-5 applied to thesematters and provided the Court with. appellate jurisdiction over same, the Court finds thatPetitioners have failed entirely to perfect personal service upon Respondent(s) as required bya.c.G.A. 21-2-5(e) and o.C.G.A 9-11-4. See Bible v. Bible, 259 Ga. 418, 418 (1989).

Therefore, IT IS EEREBY ORDERED AND ADJUDGED that Respondent BarackObama's Motion(s) to Disniss in the above matters are GRANTED, and the above actions arehereby DISMISSED.Farrar, et al. v. Obama, et a/: Civil Action No. 2012CV211398Swensson v. Obama: Civil Action No. 2012CV211527Powe ll v. Ohama: Civil Action No. 2012CV211528Wel de n v. Ohama: Civil Action No. 2012CV211537ORDER GRANTING MOTION(S) TO DISMISS Page 4


28/90

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

c:----~\-fV'\~,,~fJudgeFulton County Superior CourtAtlanta Judicial Circuit

Copies to:Via Email and U.S. Mail:David Farrar, Pro Se2059 Cavesprong RoadCedartown, Georgia 30125david. [email protected] Robert Judy, Pro Se3031 Ogden Avenue, Suite #2Ogden, Utah 84403codviudv(cV,hotmail.comJ. Mark Hatfield, Esq.Hatfield & Hatfield, P.c.201 Albany AvenueP.O. Box 1361Waycross, Georgia [email protected] R. Irion, Esq.Liberty Legal Foundation9040 Executive Park Drive, Suite 200Knoxville, TN 37923van(cV,libertvlegalfoundatiorl. orgMichael K. Jablonski, Esq.2221-D Peachtree Road, NEAtlanta, Georgia 30309michael. [email protected]

Farrar, eta!. v. Ohama, eta!: Civil Action No. 2012CV211398Swensson v. Obama: Civil Action No. 2012CV211S27Powell v. Ohama: Civil Action No. 2012CV211528Welden v. abama: Civil Action No. 2012CV211537ORDER GRANTING MOTION(S) TO DISMISS Page 5


29/90

Carn-Anh Le, Esq.Vincent Robert Russo, Jr., Esq.Office of the Georgia Secretary of StateExecutive Office214 State CapitolAtlanta, Georgia [email protected](cV,sos.ga.gov

David P. Welden, Pro Se5530 Wright RoadPowder Springs, Georgia ][email protected]

Farrar, et al. v. ahama, et al: Civil Action No. 2012CV211398Swensson v. ahama: Civil Acti:m No. 2012CV211527Powell v. ahama: Civil Action No. 2012CV211528Welden v. ahama: Civil Action No. 2012CV211537ORDER GRANTING MOTION(:;) TO DISMISS Page 6


30/90

Maiden

MM-DD-YY

Defendant(s)OBAMA, BARACKLast First Middle L Suffix Prefixaiden

General Civil Case Filing Information Form (Non-neC) ,FILED IN[FEB:~~12

DEPUTY CLERK SUPERIOR COURTFU~,Gf,

Court/if Superioro StatePlaintiff(s)SWENSSON, CARLLast First Middle L Suffix Prefix

Last First Middle L Suffix Prefix Maiden Last First Middle L Suffix Prefix Maiden

Last First Middle L Sutlix Prefix Maiden Last First Middle L Suffix Prefix Maiden

Last First Middle L Suffix Prefix Maiden Last First Middle L Suffix Prefix Maiden

No. of Plaintiffs _1 _ No. of DefelIldants _1 _PIaintiff/Petitioner's Attorney D Pro SeHATFIELD, J. MARKLast First Middle L Sutlix

Bar # 337509Check Primary Type (Check only ONE)o Contract/Account

If Tort is Case Type:(Check nomore than TWO)o Wills/Estateo Real Propertyo Dispossessory/Distresso Personal Propertyo Equityo Habeas Corpus~ Appeals, Reviewso Post Judgment Garnishment, Attachment, orOther Relief

D Auto Accidento Premises LiabilityMedical MalpracticeOther Professional NegligenceD Product LiabilityOther SpecifY

Are Punitive Damages Pleaded? DYes 0 No

o Non-Domestic Contempto Tort (If tort, fill in right column)o Other General Civil SpecifY_PLAINTIFF'S

~ EXIjIBIT.tJ ,1( ~~


31/90

IN THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA136 PRYOR STREET, ROOM C-103, ATLANTA, GEORGIA 30303SUMMONSCARL SWENSSON Case No.: 2..012 CV 2/1..52?

Plaintiff,vs.BARACK OBAMA

Defendant

TO THE ABOVE NAMED DEFENDANT(S):

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

Your are hereby summoned and required to file with the Clerk of said Court and serve upon plaintiff'sattorney, whose name and address is:

An answer to the complaint which is herewith served upon you, within 30 days after service of thissummons upon you, exclusivl~of the day of service. IF YOU FAIL TO DO SO, JUDGMENT BYDEFAULT WILL BE TAII(EN AGAINST YOU FOR THE RELIEF DEMANDED IN THE

To defendant upon whom this petition is served:

COMPLAI~~his U ._dayof

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

Deputy Sherriff

Ins truct ions: At tach addendum shee t for addi t iona l par ties i fneeded , make notat ion on this sheet i f addendum isused


32/90

IN THE: SUPERIOR COURT OF FULTON COUNTY ], 5 2012

CARL SWENSSON,STATE OF GEORGIA

* DEPUTY CLERK SUPERIOR CUL];l~~~Petitioner

V.BARACK OBAMA,

Respondent

****

CIVIL ACTIONFILE NO. 20/2 c.v 2..11.527

~ie:TITION FOR JUDICIAL REVIEWNow comes Petitioner Carl Swensson, by and through

undersigned counsel, and files this Petition For Judicial Reviewagainst Respondent Earack Obama as follows:

1.This action is an appeal of a Final Decision of Georgia

Secretary of State E1rian P. Kemp denying Petitioner CarlSwensson's challenge to the qualifications of Respondent BarackObama, a presidential candidate, to seek and hold the Office ofthe President of the United States, and finding Respondent Obamaeligible 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 Carl Swensson is a natural person residing inClayton County, Georgia. He is a registered voter in the State

Page -1-


33/90

of Georgia, and he is an elector eligible to vote for candidatesfor the Presidency elfthe United States, including presidentialcandidate Barack Obama, the Respondent herein.

4.Respondent Obama, on or before October 31, 2011, submitted a

letter to the ExecuLive Committee of the Democratic Party ofGeorgia seeking to be listed on the Georgia DemocraticPresidential PreferE!nce Primary Ballot. Consequently, onNovember 1, 2011, Georgia Democratic Party Chairman Mike Berlonsubmitted, pursuant to O.C.G.A. 21-2-193, the name ofRespondent to the Georgia Secretary of State's Office as acandidate to be listed on the Georgia Democratic PresidentialPreference Primary Ballot.

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

with the Georgia Sec:retary of State a written challenge to thequalifications of Respondent to seek and hold the Office of thePresidency of the United States. Petitioner's challengecontended that Respondent does not meet the "natural bornCitizenU eligibilit}' requirement of Article II, Section I, Clause5 of the United Stat.es Constitution.

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

secretary of State t.hereafter referred Petitioner's challenge for

Page -2-


34/90

a hearing before an administrative law judge of the Office ofState Administrative Hearings.

7.Pursuant to proper notice to the parties, a hearing was

conducted on January 26, 2012 before Administrative Law JudgeMichael M. Malihi. Petitioner was present at trial and submittedinto the record, through counsel, evidence and testimonypertaining to the issues raised by his challenge. Respondent andhis attorney, however, did not appear for trial and failed tosubmit 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 Respond.ent eligible as a candidate for thepresidential primary election. Pursuant to O.C.G.A. 21-2-5(b),the administrative Jaw judge's Decision was reported to theSecretary 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 theinitial Decision of the administrative law judge and denyingPetitioner's challenge.

Page -3-


35/90

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

seeks judicial review of the Secretary of State's Final Decisionin this case, and f~rther seeks a reversal of that FinalDecision, for the reason that substantial rights of thePetitioner have been prejudiced because the findings, inferences,conclusions, and decisions of the Secretary of State are:

(a) In violation of the Constitution and laws of thisstate;

(b) In excess of the statutory authority of the Secretaryof State;

(c) Made upon unlawful procedures;(d) Affected by other errors of law;(e) Clearly erroneous in view of the reliable, probative,

and substantial evit.ence on the whole record; and(f) Arbitrary and capricious and characterized by an abuse

of discretion and a clearly unwarranted exercise of discretion.11.

In particular, Petitioner would enumerate the followingspecific grounds for review of the Secretary of State's FinalDecision in this ca:::e:

(a) The administrative law judge, and consequently theSecretary of State s.dopting the initial Decision of said judge,erred in issuing a ::::ingleuling applicable to the cases of

Page -4-


36/90

Petitioner and cert2lin other individuals (represented by separatecounsel) who independently challenged Respondent'squalifications, desf1ite the fact that the evidence; testimony;and legal argument advanced by Petitioner Swensson differed fromthat offered by such other individuals;

(b) The administrative law judge, and consequently theSecretary of State adopting the initial Decision of said judge,erred in finding as "fact": 1) that Respondent was born in theUnited States; and 2) that Respondent's mother was a citizen ofthe United States at the time of Respondent's birth.

(c) The administrative law judge, and consequently theSecretary of State adopting the initial Decision'of said judge,erred in considering as evidence two (2) electronic images ofRespondent's purport,:=d"long form" and "short form" birthcertificates which were attached to a letter sent, prior to

trial, by email to the Secretary of State, despite the fact thatsuch images were never tendered or admitted into the record inaccordance with the rules of evidence; and despite the fact thatPetitioner was never given an opportunity to compare such imageswith the originals o::~to have the images established asdocumentary evidence according to the rules of evidence

applicable to the superior courts of this state;(d) The admini~::trative law judge, and consequently the

Secretary of State adopting the initial Decision of said judge,

Page -5-


37/90

erred in failing to make a determination as to the properplacement of the burden of proof and in failing to apply theburden of proof in reaching factual and legal conclusions inPetitioner's case, d.espite the fact that Petitioner specificallyfiled a pre-trial "~otion For Determination of Placement ofBurden of Proof";

(e) The administrative law judge, and consequently theSecretary of State adopting the initial Decision of said judge,erred in failing to find Respondent's deliberate failure toappear for trial an event of default and in failing to sustainPetitioner's challenge to Respondent's qualifications on thatindependent basis;

(f) The administrative law judge, and consequently theSecretary of State adopting the i0itial Decision of said judge,erred in adopting the reasoning of the Indiana Court of Appealsin Ankeny v. Governcr of Indiana and in finding that a personautomatically qualifies as a "natural born Citizen," pursuant toArticle II of the United States Constitution, by merely beingborn in the United ~:tates, without regard to the citizenship ofhis parents;

(g) The administrative law judge, and consequently theSecretary of State adopting the initial Decision of said judge,erred in failing to properly construe the ruling of the UnitedStates Supreme Court in Minor v. Happersett;

Page -6-


38/90

(h) The admin::.strative law judge, and consequently theSecretary of State 2ldopting the initial Decision of said judge,erred in finding that Respondent qualifies as a "natural bornCitizen" pursuant to Article II of the United StatesConstitution, despite the fact that Respondent's father was not aUnited States citizen at the time of Respondent's birth; and

(i) The administrative law judge, and consequently theSecretary of State adopting the initial Decision of said judge,erred in failing at Petitioner's request to certify to thisCourt, for a determination of appropriate action including afinding of contempt, the facts of the contemptuous behavior ofRespondent (and Respondent's counsel) in knowingly,intentionally, and deliberately failing to comply withPetitioner's Notice to Produce served upon Respondent.

12.Petitioner respectfully requests that this Court grant an

expedited hearing and review of this Petition due to the factthat the Georgia Presidential Preference Primary Election isscheduled 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 furtherrespectfully requests that this Court order a stay of the FinalDecision of the Secretary of State finding Respondent eligible to

Page -7-


39/90

be included on the ballot in Georgia as a candidate for thepresidential primary election pending a final judgment of thisCourt reviewing said Final Decision.

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

entry of the Final Cecision by the Secretary of State.15.

Pursuant to O.C.G.A. 21-2-5(e), the Secretary of State, 'assoon as possible after service of this Petition, is required totransmit to this Court the original or a certified copy of theentire record of the proceedings under review.

WHEREFORE, Petitioner Carl Swensson respectfully requeststhat this Court:

(1) Conduct a hearing and review the record in this case onan expedited basis;

(2) Grant Petitioner a stay of the Final Decision of theSecretary of State finding Respondent eligible to be included onthe ballot in Georgia as a candidate for the presidential primaryelection pending a final judgment of this Court;

(3) Issue an order reversing the Final Decision of theSecretary of State, finding that Respondent does not meet theArticle II "natural born Citizen" requirement for the presidency,removing Respondent's name from the presidential ballot inGeorgia, and adjudg:..g Respondent in contempt of court for his

Page -8-


40/90

deliberate failure to comply with Petitioner's Notice to Producein theadministrath'e proceedings; and

(4) Grant suc~ other and further relief as the Court maydeem just and proper.

This 15th day c:fFebruary, 2012.HATFIELD & HATFIELD, P.C.

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

Page -9-


41/90

OFFICE OF STATE ADMINISTRATIVE HEARINGSSTATE OF GEORGIA

DAVID FARRAR, LEAI-I LAX, CODY JUDY,THOMAS MALAREN, LAU.RIE ROTH,

Plaintiffs,v.

BARACK OBAMA.Defendant.

DAVID P. WELDEN,

Plaintiff,v.

BARACK OBAMA,Defendant.

CARL SWENSSON,Plaintiff,

v.


KEVIN RICHARD POWELL,Plaintiff,

v.


Docket Number: OSAH-SECST ATE-CE12151 36-60-MALIHICounsel for Plaintiffs: Orly TaitzCounsel for Defendant: Michael Jablonski

Docket Number: OSAH-SECST ATE-CE12151 37-60-MALIHICounsel for Plaintiff: Van R. IrionCounsel for Defendant: Michael Jablonski

Docket Number: OSAH-SECSTATE-CE1216218-60-Mi\LIHICounsel for Plaintiff: J. Mark HatfieldCounsel for Defendant: Michael Jablonski

Docket Number: OSAH-SECST ATE-CE1216823-60-MALIHI

Counsel for Plaintiff: J. Mark HatfieldCounsel for Defendant: Michael Jablonski


42/90

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

eligibility requirements fot candidacy in Georgia's 2012 presidential primary election.Georgia law mandates that candidates meet constitutional and statutory requirements fort,he office that they seek. O.C.G.A. 21-2-5(a). Mr. Obama is a candidate for federaloffice who has been certified by the state executive committee of a political party, andtherefore must, under Georgia Code Section 21-2-5, meet the constitutional and statutoryqualifications for holding the Office of the President of the United States. !d. The UnitedStates Constitution require!;that a President be a "natural born [c]itizen." U.S. Const. art.II, 1, d. 5.

As required by Georgia Law, Secretary of State Brian Kemp referred Plaintiffs'challenges to this Court for a hearing. O.C.G.A. 21-2-5(b). A hearing was held onJanuary 26,2012 .. The record closed on February 1,2012. Plaintiffs Farrar, Lax, Judy,Malaren, and Roth and their counsel Orly Taitz, Plaintiffs Carl Swensson and KevinRichard Powell and their counsel J. Mark Hatfield, and Plaintiff David P. Welden and hiscounsel Van R. Irion, all appeared and answered the call of the case. However, neitherDefendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, theCourt would entcr a default order against a party that fails to participate in any stage of aproceeding. Ga. Compo H. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the

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

2


43/90

Defendant's failure to appl~ar,Plaintiffs asked this Court to decide the case on the meritsof their aTf,rumentsand evidence. The Court granted Plaintiffs' request.

By deciding this matter on the merits, the Court in no way condones the conductor legal scholarship of Dl::fendant's attorney, Mr. Jablonski. This Decision is entirelybased on the law, as well as the evidencl~and legal arguments presented at the hearing.

3


44/90

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

Obama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr.Obama maintains a fraucLulently obtained social security number, a Hawaiian birthcertificate that is a compu ler-generated forgery, and that he does not otherwise possessvalid U.S. identification papers. Further, Plaintiffs submit that Mr. Obama has previouslyheld Indonesian citizenship, and he did not use his legal name on his notice of candidacy,which is either Barry Soetoro or Barack Obama Soebarkah. (PI.s' Am. Compi. 3.)

At the hearing, PI~lintiffs presented the testimony of eight witnesses2 and sevenexhibits in support of their position. (Exs. P-I through P-7.) When considering thetestimony and exhibits, th:is Court applies the same rules of evidence that apply to civilnonjury cases in superior court. Ga. Compo R. & Regs. 616-1-2-.18( 1)-(9). The weightto be given to any evidenl;e shall be determined by the Court based upon its reliabilityand probative value. Ga. Camp. R. & Regs. 616-1-2-.18(10).

The Court finds th(: testimony of the witnesses, as weil as the exhibits tendered, tobe of little, if any, proba:live value, and thus wholly insufficient to support Plaintiffs'allegations.3 Ms. 1'aitz attempted to solicit expert testimony from several of thewitnesses without qualifying or tendering the witnesses as experts. See Stephens v. State,219 Ga. App. 881 (1996) (the unqualified testimony of the witness was not competentevidence). For example, two of Plaintiffs' witnesses testified that Mr. Obama's birth

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

4


45/90

certificate was forged, but neither witness was properly qualified or tendered as an expertin birth records, forged documents or document manipulation. Another witness testifiedthat she has concluded that the social security number Mr. Obama uses is fraudulent;however, her investigatory methods and her sources of information were not properlypresented, and she was nevl~rqualified or tendered as an expert in social security fraud, orfraud investigations in g


46/90


47/90

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 decisionand analysis ofArkeny penmasive.

The Indiana Court began its analysis by attempting to ascertain the definition of"natural born citizen" because the Constitution does not define the term. ld. at 685-86;See Minor v. Happersett, 88 U.S. 162, 167 (1875) ("The Constitution does not, in words,say who shall be natural born citizens. Resort must be had elsewhere to ascertain that.");see also United States v. Wong Kim Ark, 169 U.S. 649 (1898) (noting that the onlymention of the term "natura1born citizen" in the Constitution is in Article II, and the termis not defined in the Constitution).

The Indiana Court first explained that the U.S. Supreme Court has read theFourteenth Amendment and Article n (natural born citizen provision) in tandem and heldthat "new citizens may hi;: born or they may be created by naturalization." [d. at 685(citing Minor, 88 U.S. at ].67);See U.S. Const. amend. XIV, 1. CAll persons born ornaturalized in the United ~;,tatesand subject to the jurisdiction thereof, are citizens of theUnited States .... "). In lvlinor, the Court observed that:

At common-law, with the nomenclature of which the framers of theConstitution were J!amiIiar,it was never doubted that all children born in acountry of parents who were its citizens became themselves, upon theirbirth, citizens also. These were natives, or natural-born citizens, asdistinguished from aliens or foreigners. Some authorities go further andinclude as citizens children born within the jurisdiction without referenceto 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.

ld. at 167-68. Plaintiffs a::;kthis Court to read the Supreme Court's decision in Minor asdefining natural born citiz'~nsas only "children born in a country of parents who were its

7


48/90

citizens." 88 U.S. at 167. However, the Indiana Court explains thatMinor did not definethe term natural born citizen. In deciding whether a woman was eligible to vote, theMinor Court merely conclllded that children born in a country of parents who were itscitizens would qualify as natural born, and this Court agrees. The Minor Court left openthe issue of whether a child born within the United States of alien parent(s) is a naturalborn citizen.

Next, the Indiana Court looked to United States v. Wong Kim Ark, in which theSupreme Court analyzed t1l1emeaning of the words "citizen of the United States" in theFourteenth Amendment and "natural born citizen of the United States" in Article II todetermine whether a child born in the United States to parents who, at the time of thechild's birth, were subjecti of China "becomes at the time of his birth a citizen of theUnited States, by virtue of the first clause of the fourteenth amendment .... " Id. at 686(citing Wong Kim Ark, 169 U.S. at 653). The Indiana Court determined that the twoprovisions "must be interpreted in the light of the common law, the principles and historyof which were familiarly known to the framers of the constitution." /d. (citing Wong KimArk, 169 U.S. at 654). The Indiana Court agreed that "[t]he interpretation of theconstitution of the United States is necessarily influenced by the fact that its provisionsare framed in the language::of the English common law, and are to be read in the light ofits history.'" Id. (citing WongKim Ark, 169 U.S. at 655) (internal citation omitted). TheWong Kim Ark Court exte:nsively examined the common law of England in its decisionand concluded that Wong Kim Ark, who was born in the United States to alien parents,

8


49/90

became a citizen ofthe United States at the time of his birth.5 Wong Kim Ark, 169 U.S. at705.

5 The Wong Kim Ark Court expillined:The fundamental principle of the common law with regard to English nationality was birthwithin the allegiance, also called "ligealty," "obedience," "faith" or "power," of the King. Theprinciple embraced all pers('us born within the King's allegiance and subject to his protection.Such allegiance and protection were mutual ... and were not restricted to natural-bornsubjecl


50/90

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

Relying on the language of the Constitution and the historical reviews andanalyses ofMinor and W01:lg Kim Ark, the lndiana Court concluded that

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

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

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

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

SO ORDERED, February 3rd, 2012.

'\Jk' J~~ ;,WI ~,UvJ~MICHAEL M. MALIHI, Judge

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

10


51/90

IN THE OFFICE OF THE SECRETARY OF STATESTATE OF GEORGIADAVID FARRAR, LEAH LAX, CODY .JUDY,THOMAS MALAREN, I,AU RIE ROTH, Docket Number: OSAH-SECST ATECE-1215136-60- MAUHI

Petitioners,Counsel for Petitioners: Orly Taitz

v.

Counsel for Respondent: Michael JablonskiRARACK ORAMA,Respondent.

DAVID P. WELDON,Petitioner,

v.

BARACK OBAMA,Respondent.

CARL SWENSSON,Petitioner,

v.

BARACK OBAMA,Respondent.

KEVIN RICHARD POWEI,L,Petitioner,

v.

BARACK OBAl.'\IA,Respondent.

Docket Number: OSAH-SECSTATECE-121S137-60- MALIHICounsel for Petitioners: Van R. IrionCounsel for Respondent: Michael Jablonski

Docket Number: OSAH-SECST ATECE-1216218-60- MALIDICounsel for Petitioners: J.Mark HatfieldCounsel for Respondent: Michael Jablonski

Docket Number: OSAH-SECSTA TECE-1216823-60- MAUHICounsel for Petitioners: J.Mark HatfieldCounsel for Respondent: Michael Jablonski


52/90

FINAL DECISION!

Petitioners filed cancLidatechallenges pursuant to a.c.G.A. 21-2-5(b) contending thatRespondent docs not meet the State of Georgia's eligibility requirements for his name to be listedon the 2012 Presidential Preference Primary ballot. Judge Michael Malihi, Administrative LawJudge ("ALJ") for the Offict~of State Administrative Hearings, held a hearing on each candidatechallenge on January 26, 2012 and entered an initial decision for the above-captioned cases onFebruary 3, 2012. The Secretary of State formally adopts the initial decision of the ALl into thisfinal decision.

Therefore, IT IS HEREBY DECIDED THAT the above-captioned challenges areDENIED.

SO DECIDED this ~:~ day of Febmary, 2012.

lflfv-Georgia Secretary of State

I Judge Michael Malihi previously consolidated the above-captioned candidate challenges for the pnrpose of issuinghis initial decision. Those candid


53/90


I, J. Mark Hatfield, Attorney for Petitioner, do herebycertify that I have this day served the foregoing Summons andPetition For Judicial Review and attachments thereto upon:

Mr. Michael K. JablonskiAttorney at Law260 Brighton Road NEAtlanta, Georgia 30309-1523Honorable Brian P. KempSecretary of Statestate of Georgia214 State CapitolAtlanta, Georgia 30334Honorable Michael M. MalihiAdministrative Law JudgeOffice of State Administrative Hear.ings230 Peachtree Street NWSuite 850Atlanta, Georgia 30303

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], by emailing same toSecretary Kemp at [email protected], and by emailing same toJudge Malihi at kbea,[email protected].

This 15th day of February, 2012.



54/90

IN THE' SUPERIOR COURT OF FULTON COUNTY

* FILE NO. 2012CV211527

CARL SWENSSON,Petitioner

V.BARACK OBAMA,

Respondent

STATE OF GEORGIA** CIVIL ACTION

**

FILED IN OfFIC

lf~EPUTY CLERK SUPERIORFULTON COUNTY, GA--MOTION FOR EXPEDITED REVIEW OR, ALTERNATIVELY,FOR STAY OF :DECISION OF SECRETARY OF STATE AND FOR

POSTPONEMENT OF. PRESIDENTIAL PREFERENCE PRIMARY ELECTIONNow comes Petitioner Carl Swensson, by and through

undersigned counsel, and moves the Court for an expedited reviewof the above-captioned appellate proceeding or, in thealternative, for a E:tay of the Final Decision of the GeorgiaSecretary of State tlerein and for a postponement of the GeorgiaPresidential Prefere~nce Primary Election, and in support of thisMotion, Petitioner E:hows to the Court the following:

1.This action is an appeal of a Final Decision of Georgia

Secretary of State Brian P. Kemp denying Petitioner CarlSwensson's challenge to the qualifications of Respondent BarackObama, a presidenti~ll candidate, to seek and hold the Office ofthe President of the~ United States, and finding Respondent Obamaeligible as a candidate for the presidential primary election.

F:ILAINTIFF'S EXHIBITu c..\\

Page -1-


55/90

2.

The Georgia Pre~sidential Preference Primary Election isscheduled to take place on March 6, 2012, only two (2) weeks fromthe date of this Motion.

3 .O.C.G.A. 21-~:-5(e) guarantees Petitioner the right to

appellate review of the adverse decision of the Secretary ofState in this matter.

4 .

Petitioner's afpeal involves, among other issues, asignificant issue of constitutional law, i.e. whether or notRespondent, whose father was a foreign national and never aUnited States citizen, meets the "natural born Citizen"eligibility requirerr~nt of Article II, Section I, Clause 5 of theUnited States Constitution.

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

Court orders a stay of the Final Decision of the Secretary ofState and a postponement of the Georgia Presidential PreferencePrimary Election per.ding a final judgment of this Court,Respondent will likely claim that Petitioner's action is mootafter the holding of the Georgia Presidential Preference PrimaryElection. Although Petitioner would disagree, and does disagree,with any such claim by Respondent, nevertheless Petitioner

Page -2-


56/90

anticipates that Respondent would probably make such an argumentin 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 Rule6.7 ("Motions in emergencies.U) provides that

Upon written notice and good cause shown, the assigned judgemay shorten or waive the time requirement applicable toemergency motions, except motions for summary judgment, orgrant an immediate hearing on any matter requiring suchexpedited procedure. The motion shall set forth in detailthe necessity for such expedited procedure.

7.In connection with Petitioner's alternative request for a

stay of the Final De8ision of the Georgia Secretary of Stateherein and for a postponement of the Georgia PresidentialPreference Primary Election, Petitioner shows that pursuant toa.C.G.A. 21-2-5(e), while "[t]he filing of the petition shallnot itself stay the decision of the Secretary of State[,] ...thereviewing court may Jrder a stay upon appropriate terms for goodcause shown." Furth2r, a.C.G.A. 5-3-28(b), applicable toappeals to superior 8ourt, provides that "[t]he superior courtmay issue such orders and writs as may be necessary in aid of itsjurisdiction on appeal.u

8.Petitioner submits that, in order that Petitioner may secure

the review of the Se8retary of State's Final Decision to which

Page -3-


57/90

Petitioner is entit ...d by Georgia law, and in order that thesignificant issue of constitutional interpretation raised byPetitioner's action may be finally and decisively adjudicated,this Court should g]~ant expedited review of the instant appealor, in the alternat:.ve, the Court should grant a stay of theFinal Decision of the Georgia Secretary of State herein and apostponement of the Georgia Presidential Preference PrimaryElection currently ~;cheduled for March 6, 2012.

WHEREFORE, Peti.tioner Carl Swensson respectfully requests

that this Court grarlt the relief requested by Petitioner herein.This 21st day of February, 2012.

HATFIELD & HATFIELD, P.C.


Page -4-


58/90


I, J. Mark Hatfield, Attorney for Petitioner, do herebycertify that I have this day served the foregoing Motion ForExpedited Review or, Alternatively, For Stay of Decision ofSecretary of State 2md For Postponement of PresidentialPreference Primary E:lection upon:

Mr. Michael K. JablonskiAttorney at Law260 Brighton Road NEAtlanta, Georgia 30309-1523Honorable 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 21st day of February, 2012.HATFIELD & HATFIELD, P.C.



59/90

IN THE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA

CARLSWENSSON,Petitioner,vs.BARACKOBAMARespondent

Civil Action File Number2012 CV211527

MOTION Ta DISMISSRespondent moves this Court for an order dismissing the petition as follows:

1.This Court lacks jurisdiction over the subject matter. a.c.G.A. 9-11-12(b)(1).2. Failure of service of process. a.c.G.A. 9-11-12(b)(5).3. Failure to state a claim upon"which relief can be granted. O.C.G.A. 9-11-12(b)(6).

Argument in favor of the motion to dismiss is set forth in the accompanying brief.Respectfully submitt,ed,This 27th day of February, 2012.

MICHAEL JABLONSKIGeorgia State Bar Number 3858502221-D Peachtree Road NEAtlanta, Georgia 30309404 [email protected]

PLAINTIFF'SEXHIBIT1/ '0'"


60/90

CERTIFICATE OF SERVICEI hereby certify that T have this day served the foregoing pleading upon

Mr, Mark HatfieldAttorney at Law201 Albany AvenueP.O. Box 1361Waycross, Georgia 31502by statutory electronic service pursuant to O.C.G.A. 9-11-5(e) using the email addressmhatfieldcmvvavxcable.com.

This 27th day of February, :;! 012.

MICHAEL JABLONSKIGeorgia State Bar Number 3;858502221- D Peachtree Road NEAtlanta, Georgia 30309404-290-2977michael.jablonski (a:lcomcast: net


61/90

IN THE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA

CARLSWENSSON,Petitioner,vs.BARACKOBAMARespondent

Civil Action File Number2012 CV211527

Brief in tiupport of Respondent's Motion to Dismiss

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

1See, Georgia cases: Rhode~; v. MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), aff'd,2010 WL 892848 (11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009); Terryv. Handel, 08CV158774S(Superior Court Fulton County, 2008), appeal dismissed, No.S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373; Cook v. Goodet aI, 4:2009cv00082, 2009 WL 2163535 (M.D.Ga. July 16, 2008).Federal cases: Allen v. Soetoro, 4:09-cv-00373, 2011WL 2130589, (D. Ariz. May, 2010);In re: American Grand Jury, 3:09mco0215(USDC Tenn., 2009); Keyes v. Obama,8:09-cv,;,00082, 2009 WL 3861788, (U.S.D.C.D. Cal. Oct. 29, 2009), appeal pending,No. 10-55084 (9th Cir., 2011); Berg v. Obama et al, 574 F.Supp.2d 509 (E.D.Pa. 2008),aff'd, 586 F.3rd 234 (3rd Cir. 2009), Cert. denied, 129 S. Ct. 1030 (2009); Berg v.Obama, 656 F. Supp.2d. 10'7(D.D.C. Cir. 2009); Beverly v. Federal ElectionsCommission, 09-15562 (E.D. Cal., 2008), aff'd 09-15562 (9th Cir., 2009), cert. denied,130 S. Ct. 1732 (2010); Bowhall v. Obama, 2:10Cvo0609, 2010 WL 4932747, (M.D. Ala.November 30,2010); The Church of Jesus Christ Christian/Aryan Nations of Missouriet al v. Obama et ai, 6:08cW)3405, 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 WL2870668 (D.C. Cir. 2008); Cook v. Good et al, 4:2009cv00082, 2009 WL 2163535,(M.D. Ga. July 16,2008); Cook v. Simtech" 8:2009cV01382 (M.D. Fla., 2009); Craig v.


62/90

U.S., 5:09-cv-00343 (W.D, Okla., 2009), cert. denied, 130 S. Ct. 141 (2009); Craig v.U.S., 5:09-cv-01345-c (W.D. Okla., 2010); Dawson v. abama, 2:08cv02754, 2009 WL532617 (KD. Cal. March 2:12009); Ealey v. Sarah abama, 4:08-mc-00504 (S.D.Tex.,2008); Essek v. abama, oB-379-GFVf (E.D. Ky., 2008); Hamblin v. abama,2:09cV00410, 2009 WL 2513986 (D. Ariz. Aug. 14, 2009); Hamrick v. Fukino, 1:08-cv00544,2009 WL 1404535 (Haw., May 20,2009); Herbert v. abama, 3:08-cv-01164HES-TEM (M.D. Fla., 2008), cert. denied, 130 S. Ct. 562 (2009); Herbert v. US, 3:08cv-00634- TJC-MCR (M.D.Fla., 2008); Herbert v. US, 3:08cv01201, 2009 WL 129585,(S.D.Cal., Jan. 15,2009); Hollander v. McCain, 566 F. Supp.2d 63 (D.N.H. 2008);Hollister v. Soetoro, 601 F. Supp.2d 179 (D.D.C. Cir. 2009), cert. denied, 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. abama, 2:10-CV-OI075(C.D. Cal., 2010); Judy v. McCain, 2:08cv01162(USDC Nev., 2008); Kerchner v. abama, 612 F.3d 204 (D.N.J. 2010), cert. denied, 131S. Ct. 663 (2010); Liberty Legal Foundation v. DNC, CH-11-1757 (D Ariz., 2011);Mackay v. abama, 2:11-CV-'05458-JP (KD. Pa., 2011), voluntarily dismissed, No. 113862 (USDCPa., 2011); McLanahan v. abama, 2:11-cv-00374-EFS (D.Was., 2011);Morrow v. Barak Humane abama, 1:08-cV-22345 (S.D. Fla., 2008); Neely v. abama,2:08-cV-15243 (E.D.MI., 20'08); Patriot's Heart Network v. Soetoro, 1:09-mc-00442RCL (D.D.C., 2009); In Re Paul Andrew Mitchell, 2:08-cv-04083 (E.D. PA, 2008),affd304 Fed. Appx 113,2008 WL 5381436 (3rd Cir., 2008), mandamus denied, No. 084443 (3d Cir., 2008); Purpura v. Sebelius, 3:10-CV-04814, 2011WL 1547768, (D.N.J.Apr. 21,2011); Rhodes v. Gotes, 5:09-cv-00703-XR (W.D.Tex., 2009); Rhodes v.MacDonald, 670 F. SUpp.26.1363 (M.D. Ga. 2009), offd, 2010 WL 892848 ( 11thCir.March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009); Robinson v. Bowen, 567F.SUpp.2d 1144 (N.D.Cal. 2(08); Roy v. Fed. Election, 2:08cvOI519, 2008 WL 4921263,(W.D. Wa. Nov. 14,2008); Stamper v. US, 1:08 CV2593,2008 WL 4838073 (N.D.OH.2008); Strunk v. Patterson, 1:08cv04289 (E.D.N.Y., 2008), appeal dismissed No. 085422 (2d Cir. Nov. 14,2008:); Strunk v. U.S. Dept. of State, 693 F.SUpp.2d 112(D.D.C.Cir. 2010), mandamus denied, No. 09-5322 (D.D.C., 2009), appeal dismissed, No. 105092, (DC Cir., 2010); Super American Grand Jury, 1:09-mc-00346-RCL (D.D.C.,2009) ; Taitz v. abama, 707'F.Supp.2d 1 (D.D.C. Cir. 2010), appeal pending, No. 115304 (DC Cir., Oct. 31, 2011); Taitz v. Astrue, 1:11-CV-00402, 2011WL 3805741, (D.D.C.Aug. 30, 2011); Taitz v. Astrue, 1:11-mC-00158 (D.Haw., 2011); Taitz v. Ruemmier, 1:11-CV-01421(D.D.C., 2011); Thomas v. Hosemann, 1:08mco0280 (D. Haw., 2008);Thomas v. Hosemann, 2:08,,,cv-00241-KS-MTP (SDMiss., 2008).State cases: Ankeny v. Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) Affd, No. 49A020904-CV-353 (Ind. App. Court); Brockhausen v. Andrade, No. 08-1001-C365 (Tex.State Court); Broe v. Reed, 82473-8 (Was. State Supreme Court); Connerat v.Browning, 999 So. 2d 644 (Fla. Dist. Ct. App. 2008); Connerat v. abama, No.09003103SC (Fla. State Comt); Connerat v. abama, No. 09005522SC (Fla. StateCourt); Constitution Party v"Lingle, No. 29743, 2008 WL 5125984 (Haw. Dec. 5,2008); Corbett v. Bowen, No. 30-2008-00114112-CU-FR_CJC, (Cal. Superior Court,2008); Craig v. Oklahoma, ]\iA-I09808 (Okla. Supreme Court); Donofrio v. Wells, No.AN-I053-08T2 (NJ. Nov. 03, 2008), Cert. denied, 129 S. Ct. 752 (2008); Fitzpatrick v.


63/90

An effort to harass the President continues with qualification challenges filedacross the country and in Georgia. Challengers ignore procedural and evidentiaryrequirements because their claims are without merit, based on fantasy, and offered inpursuit of a political agenda. See, for example, Rhodes v. MacDonald, 670 F. Supp.2d1363,1364 (M.D. Ga. 2009), affd, 2010 WL 892848 (11th Cir. March 15, 2010) cert.denied, 129 S. Ct. 2830 (20 09) ("When a lawyer uses the courts as a platform forpolitical agenda disconnected from any legitimate legal cause of action, that lawyerabuses her privilege to practice law.")

Obama, no docket number I:NCState Court); Greenberg v. Brunner, No. 2008cV1024(Ohio State Court, 2008); III re John McCain's Ineligibility to be on PresidentialPrimary Ballot in Pa, 944 }1..2d 75 (Pa. 2008); Justice v. Fuddy, 253 P.3d 665 (Haw.2011); Keyes v. Bowen, 189 Cal.App. 4th 647 (Cal. Ct. App. 2010) Cert. denied, 132 S. Ct.99 (2011); US v. LTC Terrence L. Lakin, MCAT-JA-SC; Liberty Legal Foundation v.DNC, CH-11-1757 (Tenn. St~::teCourt); Lightfoot v. Bowen, No. 168690 (Cal. SupremeCourt, 2008), Cert. denied, 555 U.S. 1151(2009); Marquis v. Reed, No. 08-2-34955-1(Was. State Court, 2008); ]l/rartin v. Lingle, No. 29414, 2008 WL 4684786, (Haw. Oct.22,2008); Martin v. Lingle;:No. ICC08-1-002147, 2009 WL 1669050, (Haw. Jun. 9,2009), Appeal Dismissed, 2009 WL 2372096 (Haw. Aug. 3, 2009); Martin v. Bennett,No. 1CC10-1-000969 (Haw. State Court); Meroni et al v. McHenry County Grand JuryForeman et al, No. 09mr399 (Ill. State Court, 2009); Neal v. Brunner, No.2008cv72726 (Ohio State Court, 2008); Patriot's Heart Media Network v. IllinoisBoard of Elections, No. 10Hoo0605 (Ill. State Court); Schneller v. Cortes, 199 MM2008 (Pa. Supreme Court, 2009), cert. denied, 129 S. Ct. 2830 (2009); Sorsensen v.Riley, cv-2008-1906 (Ala. State Court, 2008); Spuck v. Sec. of State, 2008 CVl116(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); SuUivan v. Sec. of State, 08CV1076(N.C. State Court, 2008);Sullivan v. Marshall, 08CVS-021393(N.C. State Court, 2008); Taitz v. Fuddy, 1CCll-1001731 (Haw. State Court); ']'erry v. Handel, 08CV158774S(Superior Court FultonCounty, 2008), appeal dismi'ssed, No. S09Do284 (Ga. Supreme Court), reconsiderationdenied, No. S09A1373; Wrotnowski v. Bysiewicz, SC 18264 (Conn. Supreme Court,2008).


64/90

President Obama was a United States citizen from the moment of his birth inHawaii. Since he held citizenship from birth, all Constitutional qualifications have been

met. Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. App., 2009); see,United States v.Marguet-Pillado, 648 F.3d 1001,1006 (9th Cir., 2011). There is nobasis to question the Presid.ent's citizenship or qualifications to hold office.

Specially appearing before this Court, respondent show that petitioner's actionsshould be dismissed as they have been in numerous cases for lack of jurisdiction overthe subject matter, failure of service of process, and failure to state a claim upon whichrelief can be granted. O.C.G.A. 9-11-12(b)(1), (5), and (6).

I. LACKOF SUBJECT MATTER JURISDICTIONA. THE STATE OF GEORGIA MAYNOT EXERCISEJURISDICTION OVERA POLITICAL PARTY'S CHOICE OFNAMES TO INCLUDE IN THE PRESIDENTIAL PREFERENCEPRIMARY.

The Democratic Party 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 mayexpress their preference for one person to be the candidate for nomination ... for theoffice of President ofthe United States." O.C.G.A. 21-2-191. No one is elected to anyoffice, nor is anyone nominated to run for any office, as a result of the PresidentialPreference Primary. Nomimltion of a candidate for the office of President will occur atthe national convention in Charlotte, NC during the week of September 3, 2012.

The Democratic Party of Georgia determines names to include on its PresidentialPreference Primary ballot at its sole discretion. O.C.G.A. 21-2-193. A state politicalparty "enjoys a constitutionally protected freedom which includes the right to identifythe people who constitute this association that was formed for the purpose of advancing


65/90

shared beliefs and to limit the association to those people only." See Democratic Partyof u.s. v. Wisconsin, 50 U.S. 107, 101 S.Ct. 1010, 1019, 67 L.

Documents

Swensson v Obama, Application for Discretionary Appeal, Georgia Supreme Court, 3-13-2012