2011-12-30 Swensson Motion for Leave to Take Depos

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OFFICE OF STATE ADMINISTRATIVE HEARINGSSTATE OF GEORGIA

CARL SWENSSON,Plaintiff

H E F T ;ULL 3 0 N i t

Kevin Westray. Lea

V.OCKET NO.: OSAH-SECSTATE - CE -1216218-60-MALIHIBARACK OBAMA,DefendantOFFICE OF STATE ADMINISTRATIVE HEARINGS

STATE OF GEORGIAKEVIN RICHARD POWELL,

PlaintiffV.OCKET NO.: OSAH-SECSTATE-CE-1216823-60-MALIBIBARACK OBAMA,Defendant

MOTION FOR LEAVE TO TAKE DEPOSITIONS

Now come Plaintiffs Carl Swensson and Kevin Richard Powell,by and through undersigned counsel, and respectfully move theCourt, pursuant to O.C.G.A. 50-13-41(a)(2) and 50-13-13(a)(6);OSAH Rules 616-1-2-.15 and 616-1-2-.20; and other applicable law,for leave to take depositions in each of the above-styled cases,and Plaintiffs show to the Court the following:

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1.The above-captioned cases are actions in which Plaintiffs

are challenging the qualifications of Defendant Barack Obama toappear on the voting ballot in Georgia as a candidate for thePresidency of the United States.

2.On December 15, 2011, counsel for Defendant filed in each of

the above-referenced cases a pleading styled as a "Motion toDismiss," with an "Affidavit of Michael R. Berlon" and a"Statement of Material Facts Not in Dispute" included therewith.

3.Based upon the inclusion with each "Motion to Dismiss" of a

supporting affidavit and "a short and concise statement of eachof the material facts as to which the moving party contends thereis no genuine issue for determination," see OSAH Rule 616-1-2-.15(1) ("Summary Determination"), it appears to undersignedcounsel for Plaintiffs that the aforesaid "Motion[s] to Dismiss"are in actuality motions for summary determination, or in moretraditional terms, motions for summary judgment.

4.OSAH Rule 616-1-2-.15(3) provides that

When a motion for summary determination issupported as provided in this Rule, a partyopposing the motion may not rest upon mereallegations or denials, but must show, byPage -2-


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affidavit or other probative evidence, thatthere is a genuine issue of material fact fordetermination (emphasis supplied).5 .

Under traditional summary judgment rules in Georgia,Until the moving party produces evidence ormaterials which prima facie pierce thepleadings of the opposing party, no dutyrests upon the opposing party to produce anycounter evidence or materials in affirmativesupport of its side of the issue as made bythe pleadings. See, e.g., Guthrie v.Monumental Properties, Inc., 141 Ga. App. 21,22, 232 S.E. 2d 369 (1977).

Although Plaintiffs expect to argue and demonstrate, upon filingtheir response to Defendant's "Motion[s] to Dismiss," thatDefendant has failed to make even a prima facie showing thatthere is an absence of any genuine issue of material fact fordetermination herein, nevertheless Plaintiffs recognize thatDefendant will contend to the contrary. And in the event thatthis Court should ultimately find that Defendant has, in fact,made a prima facie showing that Defendant is entitled to summaryjudgment,

[T]he burden shifts to the non-movant[s], whomust then come forward with rebuttal evidencesufficient to show the existence of a genuineissue of material fact. See Weldon v. DelTaco Corp., 194 Ga. App. 174, 390 S.E. 2d 87(1990).

The potential application in the instant cases of the above rulecited in Weldon would thus trigger the aforesaid OSAH Rule 616-1-2-.15(3) and require Plaintiffs herein to show, by affidavit or

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other probative evidence, that there is a genuine issue ofmaterial fact for determination by the Court in order to avoidsummary judgment for Defendant.

6 .

In light of the foregoing, and in order to properly respondto Defendant's "Motion[s] to Dismiss," Plaintiffs seek leave ofCourt to take the depositions of Michael R. Berlon, who is theChairman of the Georgia Democratic Party and a member of theDemocratic National Committee, and who gave the affidavit insupport of the Defendant's "Motion[s] to Dismiss"; Brian Kemp,who is the Georgia Secretary of State and legally charged withenforcing state and federal candidates' eligibility for officeand for placement on the Georgia ballot s ; and Defendant BarackObama, whose eligibility has been challenged herein. Plaintiffssubmit that, should this Court ultimately find that Defendanthas, in fact, made a prima facie showing that Defendant isentitled to summary judgment (which showing Plaintiffs contend

O.C.G.A. 21-2-5(a) provides that "[e]very candidate forfederal and state office who is certified by the state executivecommittee of a political party or who files a notice of candidacyshall meet the constitutional and statutory qualifications forholding the office being sought." O.C.G.A. 21-2-5(c) furtherstates that "[t]he Secretary of State shall determine if thecandidate is qualified to seek and hold the public office forwhich such candidate is offering. If the Secretary of Statedetermines that the candidate is not qualified, the Secretary ofState shall withhold the name of the candidate from the ballot orstrike such candidate's name from the ballot if the ballots havebeen printed."

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Defendant has not made), the testimony of each of these witnesseswill be necessary and desirable as "other probative evidence" tosatisfy Plaintiffs' burden to prove, in support of Plaintiffs'responses to Defendant's "Motion[s] to Dismiss," the existence ofa genuine issue of material fact for determination by the Court.

7 .

Further, Plaintiffs do not realistically anticipate that thetestimony of the aforementioned witnesses could be procured byaffidavit or otherwise than through the taking of depositions.Each of these witnesses occupies a political office or position,and it is highly unlikely that any of the three witnesses wouldagree to voluntarily discuss the specifics of these cases with,or subsequently produce an affidavit for use by, undersignedcounsel for Plaintiffs. More specifically, Defendant Obama is aparty to this action and is represented by counsel, andPlaintiffs' counsel would be unable, ethically or practically, toconduct an interview of Defendant without the concurrence ofdefense counsel (which concurrence is highly improbable) in theabsence of a Court order for the taking of Defendant'sdeposition. The same can additionally be said with regard toGeorgia Democratic Chairman Berlon, as he has apparently givenhis affidavit herein as part of his duties with the DemocraticParty and, according to the public webpage for the Secretary ofState's Elections Advisory Council (formed by proposed witness

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and Georgia Secretary of State Kemp), opposing counsel "MikeJablonski" (an Elections Advisory Council appointee of Secretaryof State Kemp) is the "General Counsel, Democratic Party ofGeorgia." Chairman Berlon, in his official capacity, would thusbe a legal client of opposing counsel and would therefore belegally and ethically unapproachable by Plaintiffs' counsel inthe absence of a Court order.

8.Moreover, it would simply be fundamentally unfair for

Defendant to be allowed to seek summary judgment based upon thesubmission of a self-serving affidavit by Georgia DemocraticChairman and Democratic National Committeeman Berlon whilePlaintiffs are disallowed the opportunity for cross-examinationof Berlon, Defendant Obama, or any other Democratic Partyofficial, particularly when Defendant's "Motion[s] to Dismiss"rely so heavily upon allegations of events occurring anddecisions made solely within the State and National DemocraticParty structures.

9.If granted leave of Court to conduct depositions herein,

undersigned counsel for Plaintiffs would anticipate taking thesedepositions during the weeks of January 2 and/or January 9, 2012,in consultation with defense counsel and at mutually agreeabletimes and places.

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J. ark HatfAtto ney fortiffsGeorgia Bar No. 33750910.This Motion For Leave to Take Depositions is not interposedfor any improper purpose, but for the purpose of obtainingevidence for use in the above-captioned proceedings initiated byPlaintiffs herein.WHEREFORE, Plaintiffs respectfully request that Plaintiffsbe granted leave of Court to take depositions in these matters asdescribed hereinabove.Respectfully submitted, this 30th day of December, 2011.HATFIELD & HATFIELD, P.C.201 Albany AvenueP.O. Box 1361Waycross, Georgia 31502(912) 283-3820


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2011-12-30 Swensson Motion for Leave to Take Depos

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