Appeal 15 Feb 2012 Case No. 2012CV211528

8/3/2019 Appeal 15 Feb 2012 Case No. 2012CV211528

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To defendant upon whom this petition is served:

Honorable Cathelene "Tina" RobinsonCle o Superior Court

ep ty Clerk

c o " C 4 f - F iIN THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA

136 PRYOR STREET, RO OM C-103 , ATLANTA, GEORG IA 30303S U M M ONSKEVIN RICHARD POWELL Case No.: 2012 e V 2 .1 1 5 2 _ S

Plaintiff,VS.

BARACK OBAMA

Defendant

TO THE ABOVE NAMED DEFENDANT(S):Your are hereby summoned and required to file with the Clerk of said Court and serve upon plaintiff'sattorney, whose name and address is: J. MARK HATFIELDHATFIELD & HATFIELD, P.C.

201 ALBANY AVENUEP.O. BOX 1361WAYCROSS, GEORGIA 31502(912) 283-3820

An answer to the complaint which is herewith served upon you, within 30 days after service of thissummons upon you, exclusive of the day of service. IF YOU FAIL TO DO SO, JUDGMENT BYDEFAULT WILL BE TAKEN AGAINST YOU FOR THE RELIEF DEMANDED IN THECOMPLAINT.Thisay ofThis copy of complaint and summons was served upon you2 0Deputy S herriffInstructions: Attach addendum sheet for additional parties if needed, make notation on this sheet if addendum is used


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ANN- r E l a i r l E M a: 70w o o lF E B 1 5 2 0 1 2

D E P U T Y C L E R K S U P E R I O R C O U R TF U L T O N C O U N T Y G A

IN THE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA

KEVIN RICHARD POWELL,

PetitionerIVIL ACTIONV.ILE NO. 2012 CV 21152SBARACK OBAMA,Respondent PETITION FOR JUDICIAL REVIEW

Now comes Petitioner Kevin Richard Powell, by and throughundersigned counsel, and files this Petition For Judicial Reviewagainst Respondent Barack Obama as follows:

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

Secretary of State Brian P. Kemp denying Petitioner Kevin RichardPowell'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 Kevin Richard Powell is a natural person residingin Gwinnett County, Georgia. He is a registered voter in the

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State of Georgia, and he is an elector eligible to vote forcandidates for the Presidency of the United States, includingpresidential candidate Barack Obama, the Respondent herein.

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

letter to the Executive Committee of the Democratic Party ofGeorgia seeking to be listed on the Georgia DemocraticPresidential Preference Primary Ballot. Consequently, onNovember 1, 2011, Georgia Democratic Party Chairman Mike Berlon

submitted, 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 Secretary 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 bornCitizen" eligibility requirement of Article II, Section I, Clause5 of the United States Constitution.

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

Secretary of State thereafter referred Petitioner's challenge for

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

7.

Pursuant to proper notice to the parties, a hearing wasconducted 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 Respondent eligible as a candidate for thepresidential primary election. Pursuant to O.C.G.A. 21-2-5(b),the administrative law 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.

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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 Decision

in this case, and further 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 evidence on the whole record; and

(f) Arbitrary and capricious and characterized by an abuseof discretion and a clearly unwarranted exercise of discretion.

11.In particular, Petitioner would enumerate the following

specific grounds for review of the Secretary of State's FinalDecision in this case:

(a) The administrative law judge, and consequently theSecretary of State adopting the initial Decision of said judge,erred in issuing a single ruling applicable to the cases of

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Petitioner and certain other individuals (represented by separatecounsel) who independently challenged Respondent'squalifications, despite the fact that the evidence; testimony;

and legal argument advanced by Petitioner Powell 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 purported "long form" and "short form" birthcertificates which were attached to a letter sent, prior totrial, 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 or to have the images established asdocumentary evidence according to the rules of evidenceapplicable to the superior courts of this state;

(d) The administrative law judge, and consequently theSecretary of State adopting the initial Decision of said judge,

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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 in

Petitioner's case, despite the fact that Petitioner specificallyfiled a pre-trial "Motion 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 to

appear 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 initial Decision of said judge,erred in adopting the reasoning of the Indiana Court of Appealsin Ankeny v. Governor 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 States, 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;

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(h) The administrative law judge, and consequently theSecretary of State adopting the initial Decision of said judge,erred in finding that Respondent qualifies as a "natural born

Citizen" 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 this

Court, 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 anexpedited 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 further

respectfully requests that this Court order a stay of the FinalDecision of the Secretary of State finding Respondent eligible to

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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 Decision 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 to

transmit to this Court the original or a certified copy of theentire record of the proceedings under review.

WHEREFORE, Petitioner Kevin Richard Powell respectfullyrequests that 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 adjudging Respondent in contempt of court for his

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J. ark HatfiAtt ney for lonerGeorgia Bar No. 337509

deliberate failure to comply with Petitioner's Notice to Producein the administrative proceedings; and

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

This 15th day of February, 2012.HATFIELD & HATFIELD, P.C.

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


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OFFICE OF STATE ADMINISTRATIVE HEARINGS3 Z 0 1 2STATE OF GEORGIADAVID FARRAR, LEAH LAX, CODY JUDY,THOMA S MALAREN, LAURIE ROTH,

Docket Number: OSAH-SECSTATE-C E-Plaintiffs,215136-60-MALIHEv.BARACK OBAMA.Defendant. :ounsel for P laintiffs: Orly TaitzCounsel for Defendant: Michael JablonskiDAVID P. WELDEN,Plaintiff,ocket Number: OSAH-SECSTATE-C E-

1215137-60-MALIHIv.Counsel for P laintiff: Van R. IrionBARACK OBAMA, Counsel for Defendant: Michael JablonskiDefendant.

CARL SW ENSSON,Plaintiff,ocket Number: OSAH-SECSTATE-C E-1216218-60-MALIHIv. Coun sel for Plaintiff: J. Mark H atfieldBARACK OBAMA,

:ounsel for Defendant: Michael JablonskiDefendant.KEVIN RICHARD POWELL,Plaintiff,ocket Number: OSAH-SECSTATE-C E-

:216823-60-MALIHIv.Coun sel for Plaintiff: J. Mark H atfieldBARACK OBAMA, Counsel for Defendant: Michael JablonskiDefendant.

PLAINTIFF'SEXHIBIT


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

eligibility requirements for candidacy in Georgia's 2012 presidential primary election.Georgia law mandates that candidates meet constitutional and statutory requirements forthe office that they seek. O.C.G.A. 2I-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. Id . The UnitedStates Constitution requires that a President be a -natural born [c]itizen." U.S. Const. art.II, 1, cl. 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 Kevin

Richard 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 enter a default order against a party that fails to participate in any stage of aproceeding. Ga. Comp. R. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the

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

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Defendant's failure to appear, Plaintiffs asked this Court to decide the case on the meritsof their arguments and evidence. T he Cou rt granted Plaintiffs' request.

By deciding this m atter on the merits, the Court in no way condones the conductor legal scholarship of Defendant's attorney, Mr. Jablonski. This Decision is entirelybased on the law, as well as the evidence and leg al argumen ts presented at the hearing.

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1 .videntiary Arguments of Plaintiffs Farrar, et al.Plaintiffs Farrar, Lax, Judy, Malaren, and Roth contend that President BarackObam a is not a natural born citizen. To support this contention, Plaintiffs assert that Mr.Obama maintains a fraudulently obtained social security number, a Hawaiian birthcertificate that is a compu ter-generated forge ry, and that he does not otherw ise possessvalid U.S. identification papers. Further, Plaintiffs submit that Mr. Obama has previouslyheld Indonesian citizenship, and he did not use his leg al name on h is notice of candidacy,which is either Barry Soetoro or Barack O bama Soebarkah. (Pl.s' Am. C ompl. 3.)

At the hearing, Plaintiffs presented the testimony of eight witnesses 2 and sevenexhibits in support of their position. (Exs. P-1 through P-7.) When considering thetestimony and exhibits, this Court applies the same rules of evidence that apply to civilnonj ury cases in superior court. Ga. Comp. R. & Regs. 616-1-2-.18(1)(9). The weightto be given to any evidence shall be determined by the Court based upon its reliabilityand probative value. Ga. Comp. R. & Regs. 616 -1-2 -.18(10).

The C ourt finds the testimony of the witnesses, as well as the exhibits tendered, tobe of little, if any, probative value, and thus wholly insufficient to support Plaintiffs'allegations. 3 Ms. Taitz attempted to solicit expert testimony from several of 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 birth2 Originally, Ms. Taitz indicated to the Court that she would offer the testimony of seven witnesses.However, during her closing argument, Ms. Taitz requested to testify. Ms. Taitz was sworn and began hertestimony, but shortly thereafter, 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 Tramp.. Inc. v. W W Lowe & Sons, Inc., 12 3 Ga. App. 350,352 (1971).

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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 never qualified or tendered as an expert in social security fraud, orfraud investigations in general. Accordingly, the Court cannot make an objectivethreshold determination of these witnesses' testimony without adequate knowledge oftheir qualifications. See Knudsen v. Deee -Freeman, Inc., 95 Ga. App. 872 (1957) (for

the testimony of an expert witness to be received, his or her qualifications as such mustbe first proved).

None of the testifying witnesses provided persuasive testimony. Moreover, theCourt finds that none of the written submissions tendered by Plaintiffs have probativevalue. Given the unsatisfactory evidence presented by the Plaintiffs, the Court concludesthat Plaintiffs' claims are not persuasive.

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II .pplication of the "Natural Born Citizen" RequirementPlaintiffs allege that President Barack Obama is not a natural born citizen of theUnited States and, therefore, is not eligible to run in Georgia's presidential primaryelection. As indicated supra, the United States Constitution states that In]o personexcept a natural born Citizen ... shall be eligible for the Office of the President . . .U.S. Const. art. II, 1, cl. 5.

For the purpose of this section's analysis, the following facts are considered: 1)Mr. Obama was born in the United States: 2) Mr. Obama's mother was a citizen of the

United States at the time of his birth; and 3) Mr. Obama's father was never a UnitedStates citizen. Plaintiffs contend that, because his father was not a U.S. citizen at the timeof his birth, Mr. Obama is constitutionally ineligible for the Office of the President of theUnited States. The Court does not agree.

In 2009, the Indiana Court of Appeals ("Indiana Court") addressed facts andissues similar to those before this Court. Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct.App. 2009). In Arkeny, the plaintiffs sought to prevent certification of Mr. Obama as aneligible candidate for president because he is not a natural born citizen. Id. at 681. Theplaintiffs argued, as the Plaintiffs argue before this Court, that -there's a very cleardistinction between a 'citizen of the United States' and a 'natural born Citizen,' and thedifference involves having [two] parents of U.S. citizenship, owing no foreignallegiance." Id. at 685. The Indiana Court rejected the argument that Mr. Obama was

4 The definition of this clause has been the source of much debate. See, e.g., Gordon, Who Can BePresident of the United States: The Unresolved Enigm a, 28 Md. L. Rev. I (1968); Jill A. Pryor, Note, TheNatural-Born Citizen Clause and Presidential Eligibility: An Approach for R esolving Two Hundred Yearsof Uncertainty, 97 Yale L.J. 881 (1988); Christina S. Lohman, Presidential Eligibility: The Meaning of theNatural-Born Citizen Clause. 36 Gonz. L. Rev. 349 (2000); William T. Han, Beyond PresidentialEligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship, 58 Drake L. Rev. 457(2010).6


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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 of Arkenv persuasive.

The Indiana Court began its analysis by attempting to ascertain the definition of"natural born citizen" because the Constitution does not define the term. Id. at 685-86;See Minor v. Happersett, 88 U.S. 16 2 , 167 (187 5) ("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 "natural born citizen" in the C onstitution is in A rticle II. and the termis not defined in the Constitution).

The Indiana Court first explained that the U.S. Supreme Court has read theFourteenth Am endment and A rticle II (natural born citizen provision) in tandem and heldthat "new citizens may be born or they may be created by naturalization." Id. at 685(citing Minor, 88 U.S. at 167); See U.S. Const. amend. XIV, 1. ("All persons born ornaturalized in the U nited States and sub ject to the jurisdiction thereof, are citizens of theUnited States . .-). In Minor, the Court observed that:

At common-law, with the nomenclature of which the framers of theConstitution were familiar, 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 o f this case it is not necessary tosolve these doubts.

Id. at 167-68. Plaintiffs ask this Court to read the Supreme Court's decision in Minor asdefining natural born citizens as only "children born in a country of parents who were its

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citizens. - 88 U.S. at 167. However, the Indiana Court explains that Minor did not definethe term natural born citizen. In deciding whether a woman was eligible to vote, theMinor Court merely concluded 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 the meaning of the words -citizen of the United States - in the

Fourteenth 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 subjects 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 history

of which were familiarly known to the framers of the constitution." Id. (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 Wong Kim Ark, 169 U.S. at 655) (internal citation omitted). TheWong Kim Ark Court extensively examined the common law of England in its decisionand concluded that Wong Kim Ark, who was born in the United States to alien parents,

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

Th e Wong Kim Ark Court explained: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 persons born within the King's allegiance and subject to his protection.Such allegiance and protection were mutual . . . and were not restricted to natural-bornsubjects and naturalized subjects, or to those who had taken an oath of allegiance; but werepredicable of aliens in amity, so long as they were within the kingdom. Children, born inEngland. of such aliens, were therefore natural-born subjects. But the children, born withinthe realm, of foreign ambassadors, or the children of alien enemies, born during and withintheir hostile occupation of part of the King's dominions, were not natural-born subjects,because not born within the allegiance. the obedience, or the power, or, as would be said atthis day. within the jurisdiction of the King.

169 U.S. at 655.It thus clearly appears that by the law of England for the last three centuries, beginning beforethe settlement of this country, and continuing to the present day, aliens, while residing in thedominions possessed by the Crown of England, were within the allegiance, the obedience, thefaith or loyalty, the protection. the power, the jurisdiction, of the English Sovereign; andtherefore every child born in England of alien parents was a natural-born subject, unless thechild of an ambassador or other diplomatic agent of a foreign State. or of an alien enemy inhostile occupation of the place w here the child was bo rn.

Id . at 658. Further:Nothing is better settled at the common law than the doctrine that the children, even of aliens.born in a country, while the parents are resident there under the protection of the government,and owing a temporary allegiance thereto, are subjects by b irth.

Id. at 660 (quoting Inglis v. Trustees of Sailors' Snug Harbor, 28 U.S. (3 Pet.) 99. 164 (1830) (Story, J.,concurring)). And:The first section of the second article of the constitution uses the language. 'a natural-borncitizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this languageof the constitution was used in reference to that principle of public law, well understood inthis country at the time of the adoption of the constitution, which referred citizenship to theplace of birth.

Id . at 662 (quoting Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting)).Finally:All persons born in the allegiance of the king are natural-born subjects, and all persons born inthe allegiance of the United States are natural-born citizens. Birth and allegiance go together.Such is the rule of the common law, and it is the common law of this country, as well as ofEngland.

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

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Relying on the language of the Constitution and the historical reviews andanalyses of Minor and Wong Kim Ark, the Indiana Court concluded that

persons born within the borders of the United States are "natural borncitizens" for Article II, Section 1 purposes, rega rdless 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 U nited States[] natural-born citizens."

916 N.E.2 d at 68 8. 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. 6

For the purposes of 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. According ly,

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

election under O.C.G.A. 21 -2 -5(b).

SO ORDERED, February 3 r d , 2012.

MICHAEL M. MALIHI, Judge

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

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IN THE OFFICE OF THE SECRETARY OF STATESTATE OF GEORGIADAVID FARRAR, LEAH LAX, CODY JUDY, :THOMAS MALAREN, LAURIE ROTH,

Docket Number: OSAH-SECSTATE-: CE-1215136-60- MALIHIPetitioners,v.BARACK OBAMA,

Respondent.

: Counsel for Petitioners: Orly Taitz: Counsel for Respondent: Michael Jablonski

DAVID P. WELDON, : Docket Number: OSAH-SECSTA TE-Petitioner,CE-1215137-60- MALIHIv .ounsel for Petitioners: Van R. IrionBARACK OBAMA,Counsel for Respondent: Michael JablonskiRespondent.CARL SWENSSON, : Docket Number: OSAH-SECSTA TE-Petitioner,CE-1216218-60- MALIHI

v.Counsel for Petitioners: J. Mark HatfieldBARACK OBAMA,Counsel for Respondent: Michael JablonskiRespondent.KEVIN RICHARD POWELL,N

Docket Number: OSAH-SECSTATE-Petitioner,CE-1216823-60- MALIHIV.

BARACK OBAMA,Respondent.

Counsel for Petitioners: J. Mark HatfieldCounsel for Respondent: Michael Jablonski


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FINAL DECISION!Petitioners filed candidate challenges pursuant to O.C.G.A. 2 1-2 -5(b) contending that

Respondent does not meet the State of Georgia's eligibility requirements for his name to be listedon the 20 12 Presidential Preference Primary ballot. Judge M ichael. Malihi, Administrative LawJudge ("A LT) for the Office of State Administrative Hearings, held a hearing on each candidatechallenge on January 2 6, 2 012 and entered an initial decision for the above-captioned cases onFebruary 3, 2 012 . The Secretary of State formally adopts the initial decision of the ALJ into thisfinal decision.

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

SO DECIDED this 7th day of February, 2012.

BRIAN P. KEMPGeorg ia Secretary of State

Judge M ichael Malihi previously consolidated the above-captioned candidate challenges for the purpose of issuinghis initial decision. Those candidate challenges remain consolidated for the purpose of issuing this Final Decision.


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CERTIFICATE OF SERV ICE

I, J. Mark Hatfield, Attorney for Petitioner, do herebycertify that I have this day served the foregoing Summons and

Petition 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 Hearings230 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 [email protected] .

This 15th day of February, 2012.HATFIELD & HATFIELD, P.C.

J. ark HatAtt.", ney fo PetitionerGeorgia Bar No. 337509201 Albany AvenueP.O. Box 1361Waycross, Georgia 31502(912) 283-3820


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Very truly yours,

HATF IELD & HAT FIELD, P.C.A T T O R N E Y S A T L A W201 ALBANY AVEN UEP.O. BOX 1361WAYCROSS, GEORGIA 31502

F E " C O P YJ . MARK HATFIELDELEPHONE (912) 283-3820THOMAS E. HATFIELDACSIMILE (912) 283-3819

February 15, 2012

Honorable Brian P. KempSecretary of StateState of Georgia214 State CapitolAtlanta, Georgia 30334RE: Kevin Richard Powell v. Barack ObamaSuperior Court of Fulton CountyCivil Action File No. 24012.C.V21152.53Dear Secretary Kemp:Pursuant to O.C.G.A. 21-2-5(e), enclosed herewith please find acopy of the Summons and Petition For Judicial Review pending inthe Superior Court of Fulton County on behalf of Kevin RichardPowell in this matter.As you are aware, your office is now required by the above-referenced Code Section to transmit, as soon as possible, theoriginal or a certified copy of the entire record of theproceedings under review to the Superior Court of Fulton County.I appreciate your kind assistance in this matter. Please let meknow right away if you have any questions or concerns regardingthe foregoing.

JMH:cegEnclosurecc: Mr. Michael K. Jablonski (w/enclosure)


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Very truly yours,

ark Hat

HATFIELD & HATFIELD, P.C.ATTORNEYS AT LAW F " E " P Yis 6 4 )201 ALBANY AVEN UEP.O. BOX 1361WAY CROSS, GEORGIA 31502

J . MARK HA TFIELDELEPHONE (912) 283-3820THOMAS E. HATFIELDACSIMILE (912) 283-3819February 15, 2012

Honorable Michael M. MalihiAdministrative Law JudgeOffice of State Administrative Hearings230 Peachtree Street NWSuite 850Atlanta, Georgia 30303RE: Kevin Richard Powell v. Barack ObamaSuperior Court of Fulton County

Civil Action File No. 2nt2.c.1/24.52 2 ,Dear Judge Malihi:Pursuant to Rule 616-1-2-.39 of the Office of StateAdministrative Hearings ("Judicial Review. Amended."), enclosedherewith please find for filing a copy of the Summons andPetition For Judicial Review pending in the Superior Court ofFulton County on behalf of Kevin Richard Powell in this matter.I appreciate your attention to this matter. Please let me knowif you have any questions or concerns regarding the foregoing.

JMH:cegEnclosurecc: Mr. Michael K. Jablonski (w/enclosure)

Appeal 15 Feb 2012 Case No. 2012CV211528

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Transcript of Appeal 15 Feb 2012 Case No. 2012CV211528