GA - 2012-03-12 - SWENSSON v OBAMA (Appeal SCOGA) - Application for Discretionary Appeal

8/2/2019 GA - 2012-03-12 - SWENSSON v OBAMA (Appeal SCOGA) - Application for Discretionary Appeal

1/90

CARL SWENSSON,

Applicant

IN THE SUPREME COURT

STATE OF GEORGIA

*

*

v.

BARACK OBAMA,

Respondent

*

*

*

CASE NO.

APPLICATION FOR DISCRETIONARY APPEAL

J. MARK HATFIELDHATFIELD & HATFIELD, P.C.Attorney for Applicant

201 Albany AvenueP.O. Box 1361

Waycross, Georgia 31502(912) 283-3820

Georgia Bar No. [email protected]


2/90

CARL SWENSSON,

Applicant

IN THE SUPREME COURT

STATE OF GEORGIA

*

*

V.

BARACK OBAMA,

Respondent

*

*

*

CASE NO.

APPLICATION FOR DISCRETIONARY APPEAL

Now comes AppL_cant Carl Swensson, by and through

undersigned counsel" and respectfully applies to this Court

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

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

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

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

Applicant's Fulton ~3uperior Court action appealing a Final

Decision of Georgia Secretary of State Brian P. Kemp denying

Applicant's challeneJe to the qualifications of Respondent Barack

Obama, a presidenti2il candidate, to seek and hold the Office of

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

eligible as a candidate for the presidential primary election.

Applicant resp(~ctfully shows to the Court that he is

attaching hereto: as Exhibit "A" a copy of the aforesaid "Order

Granting 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 Expedited

Review or, Alternatjvely, For Stay of Decision of Secretary of

State and For Postponement of Presidential Preference Primary

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

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

Support thereof sen,'ed on February 27, 2012; as Exhibit "E" a

copy 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 March

2, 2012 and thereafter stamped as filed on March 5, 2012; and as

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

Respondent's attorney to Secretary of State Brian P. Kemp.

PART ONE

STATEMENT OF THE CASE

1. TYPE OF CJ~E. This case is an Application For

Discretionary 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 Court

of Fulton County di~,missing Applicant's "Petition For Judicial

Review" of a Final Decision of Georgia Secretary of State Brian

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

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

Office of the President of the United States, and finding

Respondent Obama eli,gible as a candidate for the presidential

primary election.

Page -2-


4/90

2. SUPREME COURT JURISDICTION. The Supreme Court has

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

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

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

Paragraph II, as this case draws into question the

constitutionality o~~ O.C.G.A. 21-2-5 as applied to Presidential

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

of the "natural borrl Citizen" presidential eligibility

requirement of Artic:le II, Section I, Clause 5 of the United

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

exclusive appellate jurisdiction.

3. JUDGMENT l!lPPEALEDAND DATE OF ENTRY. The Superior

Court of Fulton County's "Order Granting Respondent Barack

Obama'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 Executive

Committee of the Democratic Party of Georgia seeking to be listed

on the Georgia Democ:ratic Presidential Preference Primary Ballot.

Consequently, on November 1, 2011, Georgia Democratic Party

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

the name of RespondE!nt Obama to the Georgia Secretary of State's

Office as a candidate to be listed on the Georgia Democratic

Presidential Preference Primary Ballot.

Page -3-


5/90

Thereafter, pu::suant to O.C.G.A. 2l-2-5(b), Applicant

Swensson, a resident: of Clayton County, Georgia and a registered

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

candidates for the Presidency of the United States, timely filed

with the Georgia Se(:retary of State a written challenge to the

qualifications of RE~spondent to seek and hold the Office of the

Presidency of the United States. Applicant contended that

Respondent does not meet the "natural born Citizen" eligibility

requirement of Arti(:le II, Section I, Clause 5 of the United

States Constitution"

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

Secretary of Statel:eferred Applicant's challenge to an

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

State Administrativ(~ Hearings (hereinafter "OSAH"). Thereafter,

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

hearing on January 26, 2012.

Applicant was present at trial and submitted into the

record, through cou:lsel, evidence and testimony pertaining to the

issues raised by hi:3 challenge. However, despite being timely

served with a Notici3 to Produce by Applicant's counsel requiring

Respondent to persollally appear for trial and to bring with him

certain documents for use as evidence by Applicant at trial,

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

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

Page -4-


6/90

No evidence or test:Lmony whatsoever was introduced into the

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

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

2012 was knowing anci intentional, as demonstrated by a January

25, 2012 letter wri1:ten by Respondent's attorney to Georgia

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

Applicant's ev__ence at trial established that Respondent's

father, Barack HussE!in Obama, was born in Kenya and was a subject

of Great Britain. Additionally, Applicant established that

Respondent's afores~lid father, Barack Hussein Obama, was not a

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

Respondent in 1961 or at any other time whatsoever.

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

Decision finding Re~3pondent eligible as a candidate for the

presidential 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. 21-2

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

Decision adopting the initial Decision of the ALJ and denying

Applicant'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 judicial

review of the Secre+:ary of State's Final Decision (Exhibit "8")

Page -5-


7/90

Applicant's Petitioll also requested that the Court grant an

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

Georgia Presidentia:_ Preference Primary Election was scheduled to

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

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

the election date, J\pplicant then filed, on February 22, 2012, a

"Motion For Expedi t(;d Review or, Al ternati vely, For Stay of

Decision of Secretary of State and For Postponement of

Presidential Preference Primary Election" (Exhibit "C")

On February 27, 2012, counsel for Respondent served a

"Motion to Dismiss" and Brief in Support thereof in which

Respondent argued ttlat the Court lacked jurisdiction over the

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

and that Applicant'~3 Petition failed to state a claim upon which

relief could be granted (Exhibit "0").

On March 1, 20_2, the Court notified counsel for Applicant

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

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

morning, 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's

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

acknowledged receip1: of same in an email sent at 8:30 a.m. on the

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

Page -6-


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 the

qualifications of a candidate in the Presidential Preference

Primary.

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

unconstitutional as applied to a challenge to the qualifications

of a candidate in the Presidential Preference Primary.

3. The Superior Court erred in holding that Applicant

failed to perfect sE!rvice and in dismissing Applicant's action

based upon a findinq of failure to perfect service.

4.The Super~or Court erred in failing to reverse the

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

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

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

apply such 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 the

ALJ'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 the

time of Respondent':3 birth.

6. The Super __r Court erred in failing to reverse the

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

ALJ's and the Secre1:ary of State's error in finding that

Respondent qualifie~3 as a "natural born Citizen" pursuant to

Article II of the Ullited States Constitution, despite the fact

that Respondent's f2ither was not a United States citizen at the

time of Respondent':3 birth.

PART THREE

ARGUMENT AND CITATION OF AUTHORITY

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

34, concerning the :3tandard for granting discretionary appeals,

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

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

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

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

desirable."

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

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

number of reversiblE! errors. Additionally, as this case raises

significant issues J:egarding the State of Georgia's authority to

screen the qualifications of presidential contenders, and as

these issues are ceJ:tainly capable of being raised with regard to

Page -8-


10/90

future presidential candidacies, the establishment of a precedent

is 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 the

qualifications of a candidate in the Presidential Preference

Primary.

The Superior Cc)urt held that O.C.G.A. 21-2-5, the Georgia

qualifications chal.enge statute, does not apply to the

Presidential Preference Primary, as the Presidential Preference

Primary apportions delegates, but does not result in the

nomination or elect::.onof a presidential candidate. The Court

also found that Respondent is not yet a "candidate" for the

Presidential Electic)n, and that the Presidential Preference

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

Election Code. In this connection, Respondent contended before

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

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

not a primary or spE!cial primary unless the context in which

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

or special primary.

The Superior Court and Respondent overlooked, however, the

provisions of 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 "any

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

the Superior Court'~3 finding to the contrary, contestants 1n a

Presidential PreferE~nce Primary are specifically designated by

statute 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 a

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

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

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

however, that a cha:_Ienge of the qualifications of any candidate

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

candidate," and ReSI)ondent's political party would presumably be

filing a certificat~_on of his nomination prior to the general

election. Addition2llly, Applicant submits that "certified" and

"notice of candidac~1" are not specifically defined terms in the

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

Presidential PreferE~nce Primary candidates submitted by

Respondent's politic:al party pursuant to O.C.G.A. 21-2-193

constituted a "cert:~fication" or a "notice of candidacy."

Page -10-


12/90

Accordingly, i1: i s apparent that the Georgia qualifications

challenge statute does, in fact, apply to the Presidential

Preference Primary; that the Superior Court did properly have

subject-matter jurifldiction of Applicant's Petition; and that the

Superior Court comm:_tted reversible error in holding otherwise.

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

unconstitutional as applied to a challenge to the qualifications

of a candidate in the Presidential Preference Primary.

The Superior Court also granted dismissal for lack of

subject-matter juri~;diction based upon Respondent's argument that

First (and Fourteenth) Amendment associational rights of a

political party giVE! the party the exclusive right to determine

whom to include on j.ts Presidential Preference Primary ballot.

While Respondent contended that First Amendment

associational right~; of a party are "most often litigated" in the

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

ballot (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 "the

reverse is also trUE!" in that the party has the unchecked right

to require certain names on its primary ballot. Respondent,

however, cited no allthority for the latter proposition.

The Superior CClurt essentially adopted Respondent's

argument, as the COllrt held that the Secretary of State may not

Page -11-


13/90

interfere with a po~_itical party's determination of its

candidates, and the Secretary's authority is limited to examining

presidential electoJ~s. However, none of the cases or statutes

cited by the Superic)r Court or by Respondent are authority for

the conclusion that a political party's constitutional

associational right~; deprive a state government of its ability to

require that candid~ltes meet constitutional or statutory

eligibility requiren~nts for office in order to be placed on the

state ballot.

In point of fac:t, O.C.G.A. 21-2-5(b) and (c) authorize

the Georgia Secretal:y of State, or an eligible Georgia elector,

to challenge a candj.date's qualifications, and the Secretary of

State is thereafter empowered to determine whether the candidate

lS qualified to seek and hold office. O.C.G.A. 21-2-5(e) gives

an elector unsucces~;fully challenging a candidate's

qualifications the l:ight to appeal the Secretary of State's

decision by filing ~lpetition in the Superior Court of Fulton

County. Given the ~;tate's right to run its own elections,

nothing pertaining to the associational rights of the

Respondent's politic:al party deprived the Superior Court of

subject-matter jurisdiction over Applicant's case, and the

Superior Court comm:_tted error in holding otherwise.

Page -12-


14/90

3. The Superior Court erred in holding that Applicant

failed 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 upon

Respondent(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 case

to be subject to dimnissal for the reason argued by Respondent

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

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

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

However, the C2lse of DouGlas Asphalt Co. v. GeorGia Public

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

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

appeal of an adminL,trative decision of a state agency or other

tribunal, personal service of the petition for judicial review

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

to preserve the jurisdiction of the court. The Court

specifically noted t:hat service of appeals from an agency

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

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

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

Page -13-


15/90

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

pertinent part that

Whenever under this article service or the

giving of any notice is required or permitted

to be 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 new

trial, 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 upon

Respondent Obama by mailing same to his attorney was in

accordance with Geo::gia law.

Applicant further notes, however, that even if the service

by 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 service

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

shall grant continu2lnces and enter such other orders as may be

necessary to permit a just and expeditious determination of the

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

inappropriate, and t:he Superior Court erred to the extent that

its dismissal was b2lsed upon failure to perfect service.

Page -14-


16/90



ALJ's and the Secre'i:aryof State's errors in failing to determine

the proper placemen'l:of the burden of proof and in failing to

apply such determina.tion in ruling upon Applicant's challenge.

In dismissing ]~pplicant's Petition For Judicial Review, the

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

make a determinatiolr as to the proper placement of the burden of

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

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

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

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

an order, pursuant t:o Havnes v. Wells, 273 Ga. 106, 108-109, 538

S.E. 2d 430, 433 (2()00), r equiring Respondent to affirmatively

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

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

by Applicant, but tile judge never even addressed or resolved the

motion in his final ruling.

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

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

burden of proof in ~lll matters." 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 justice

requires a different: placement of the burden of proof."

Page -15-


17/90

The challenge 1:0 Respondent's qualifications herein was not

initiated by the apIJlicable agency, the Office of the Secretary

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

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

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

challenge, the Secr(~tary of State was required as a matter of

procedure, also pUr!lUant to O.C.G.A. 21-2-5(b), to refer the

challenge to the OSAH for a hearing.

Prior to the t]~ial before the ALJ, the "agency," i.e. the

Office of the Secret:ary of State, made no determination of

candidate qualificat:ions; issued no decision; and was not a party

to the challenge, arid it would have therefore been inappropriate

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

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

have been placed eit:her with Applicant (i.e., to prove Respondent

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

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

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

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

rd.

The significan(:e of the ALJ's failure to rule on the burden

of proof is immediately apparent. Respondent and his lawyer

failed to attend tr~_al and failed to offer any evidence, and such

failures 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, as

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

Respondent can in nCl way be said to have satisfied his burden,

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

Superior Court to rE!VerSe the Secretary of State, and the ALJ, on

the basis of their j~ailure to address the burden of proof is

reversible error.

5. The Super:i.orCourt erred in failing to reverse the


ALJ's and the Secrei!:aryof State's errors in finding as "fact"

that Respondent was born in the United States and that

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

time of Respondent'B birth.

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

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

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

"considered." Specj_fically, the ALJ found as "fact": 1) that

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

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

the time of RespondE!nt's birth.

However, as set: forth hereinabove, Respondent carried the

burden of proving h:_s eligibility for office. Inasmuch as

Respondent and his attorney did not appear for trial and did not

offer any evidence \Jhatsoever, and inasmuch as the "natural born

Page -17-


19/90

Citizen" requirement: for presidential eligibility mandates an

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

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

(as is explained he::einbelow), Respondent failed to carry his

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

found by the ALJ wel:e legally unsupported. The Superior Court's

failure to reverse t:he Secretary of State, and the ALJ, with

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



ALJ's and the Secre1:;aryof State's error in finding that

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

Article II of the United States Constitution, despite the fact

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

time of Respondent'f:1birth.

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

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

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

916 N.E. 2d 678 (20(19), with regard to the ALJ's finding that a

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

Uni ted States becaw:e he became a United States citizen at birth.

Although, as pc,inted out hereinabove, there was absolutely

no evidence whatsoe\"er submitted by Respondent at trial to carry

his 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 States

automatically confe::s the status of "natural born Citizen"

pursuant to Article II of the United States Constitution is

unfounded; is an inc:orrect statement of the applicable law; and

is contrary to the l:uling of the United States Supreme Court in

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

162 (1875).

Minor is bindirlg authority for the proposition that the

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

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

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

Because, as Applicar.t's undisputed evidence at trial

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

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

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

presidency, and the ALJ and the Secretary of State committed

error in finding ott.erwise. The Superior Court thus likewise

committed reversiblE error in failing to reverse the ALJ and the

Secretary of State cn this issue.1

CONCLUSION

For the above and foregoing reasons, Applicant respectfully

requests 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 the

Superior 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. 337509

201 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 hereby

certify that I have this day served the foregoing Application For

Discretionary Appea:_ upon:

Mr. Michael K. Jablonski

Attorney at Law2221-0 Peachtree Road NE

Atlanta, Georgia 30309

Honorable Brian P. KempSecretary of StateState of Georgia214 State CapitolAtlanta, Georgia 30334

by placing a copy o~: same in the United States Mail in a properly

addressed envelope ~lith sufficient postage affixed thereto in

order to insure prO[ler delivery, and by emailing same to Mr.

Jablonski at michae][email protected], and by emailing same

to Secretary Kemp at vrusso@sos. CB. GOV.

This 12th day of March, 2012.



Waycross, Georgia 3J.502(912) 283-3820


23/90

Mark Hatfield

From: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, 2012cv211537

DOC006.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


25/90

DAVIDP. WELDEN

**

** *CNILACTION

*FILE NO. 2012CV211537

*

**

*

ORDER GRANTING ]!illSPONDENT BARACK OBAMA'S MOTION(S) TO DISMISS

The 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 were

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

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

an appeal of the same decil:ion issued on February 3,2012 by Administrative Law Judge Michael

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

of State.

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

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

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

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

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

Petitioners filed thdr Appeal/Petition for Judicial Review of the Secretary of State's

decision 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 its

application in the court be low, this Court does not believe that a.c.G.A.21-2-5 applies in this

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

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

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

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

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

because 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 voters

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

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

for 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 Georgia

has the sole discretion to determine the qualifications of potential candidates and the name(s) to

be 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 States

Constitution and Georgia statutory law from infringing on the associational rights of the

Democratic 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 State

may 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 to

exercise jurisdiction over the Democratic Party of Georgia's selection of the names(s) to be

included in the Presidential Preference Primary or to examine the qualifications of those

individuals. 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 these

matters and provided the Court with. appellate jurisdiction over same, the Court finds that

Petitioners have failed entirely to perfect personal service upon Respondent(s) as required by

a.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 Barack

Obama's Motion(s) to Disniss in the above matters are GRANTED, and the above actions are

hereby DISMISSED.

Farrar, et al. v. Obama, et a/: Civil Action No. 2012CV211398Swensson v. Obama: Civi l Action No. 2012CV211527Powell v. Ohama: Civil Action No. 2012CV211528

Welden 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]

Cody Robert Judy, Pro Se3031 Ogden Avenue, Suite #2Ogden, Utah 84403codviudv(cV,hotmail.com

J. Mark Hatfield, Esq.Hatfield & Hatfield, P.c.201 Albany AvenueP.O. Box 1361

Waycross, Georgia [email protected]

Van R. Irion, Esq.Liberty Legal Foundation9040 Executive Park Drive, Suite 200Knoxville, TN 37923van(cV,libertvlegalfoundatiorl. org

Michael 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: Civi l Act ion No. 2012CV211528Welden v. abama: Civil Action No. 2012CV211537

ORDER 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 Office

214 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: Civi l Action No. 2012CV211537

ORDER 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:~~12DEPUTY CLERK SUPERIOR COURT

FU~,Gf,

Court/if Superioro State

Plaintiff(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 Se

HATFIELD, J. MARKLast First Middle L Sutlix

Bar # 337509

Check Primary Type (Check only ONE)

o Contract/AccountIf Tort is Case Type:

(Check no more than TWO)

o Wills/Estate

o Real Propertyo Dispossessory/Distresso Personal Propertyo Equityo Habeas Corpus~ Appeals, Reviews

o Post Judgment Garnishment, Attachment, orOther Relief

D Auto Accident

o 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 30303

SUMMONS

CARL SWENSSONCase No.: 2..012 C V 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 this

summons upon you, exclusivl~of the day of service. IF YOU FAIL TO DO SO, JUDGMENT BY

DEFAULT 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

I ns truct ions: At tach addendum shee t for add i t iona l par ti es i f needed , make not at ion on thi s sheet i f addendum isused


32/90

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

CARL SWENSSON,

STATE OF GEORGIA

*DEPUTY CLERK SUPERIOR COUUL];l~~~

Petitioner

V.

BARACK OBAMA,

Respondent

*

*

*

*

CIVIL ACTION

FILE NO. 20/2 c.v 2..11.527

~ie:TITION FOR JUDICIAL REVIEW

Now comes Petitioner Carl Swensson, by and through

undersigned counsel, and files this Petition For Judicial Review

against 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 Carl

Swensson's challenge to the qualifications of Respondent Barack

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

the President of the United States, and finding Respondent Obama


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 in

Clayton 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 candidates

for the Presidency elf t he United States, including presidential

candidate 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 of

Georgia seeking to be listed on the Georgia Democratic

Presidential PreferE!nce Primary Ballot. Consequently, on

November 1, 2011, Georgia Democratic Party Chairman Mike Berlon

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

Respondent to the Georgia Secretary of State's Office as a

candidate to be listed on the Georgia Democratic Presidential

Preference Primary Ballot.

5 .

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

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

qualifications of Respondent to seek and hold the Office of the

Presidency of the United States. Petitioner's challenge

contended that Respondent does not meet the "natural born

CitizenU eligibilit}' requirement of Article II, Section I, Clause

5 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 of

State Administrative Hearings.

7.

Pursuant to proper notice to the parties, a hearing was

conducted on January 26, 2012 before Administrative Law Judge

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

into the record, through counsel, evidence and testimony

pertaining to the issues raised by his challenge. Respondent and

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

submit any evidence or testimony whatsoever.

8 .

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

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

"A," finding Respond.ent eligible as a candidate for the

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

the administrative Jaw judge's Decision was reported to the

Secretary of State.

9.

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

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

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

initial Decision of the administrative law judge and denying

Petitioner's 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 Decision

in this case, and f~rther seeks a reversal of that Final

Decision, for the reason that substantial rights of the

Petitioner 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 this

state;

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

of State;

(c) Made upon unlawful procedures;

(d) Affected by other errors of law;

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

and substantial 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 following

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

Decision in this ca:::e:

(a) The administrative law judge, and consequently the

Secretary 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 separate

counsel) who independently challenged Respondent's

qualifications, desf1ite the fact that the evidence; testimony;

and legal argument advanced by Petitioner Swensson differed from

that offered by such other individuals;

(b) The administrative law judge, and consequently the

Secretary of State adopting the initial Decision of said judge,

erred in finding as "fact": 1) that Respondent was born in the

United States; and 2) that Respondent's mother was a citizen of

the United States at the time of Respondent's birth.

(c) The administrative law judge, and consequently the

Secretary of State adopting the initial Decision'of said judge,

erred in considering as evidence two (2) electronic images of

Respondent's purport,:=d"long form" and "short form" birth

certificates which were attached to a letter sent, prior to

trial, by email to the Secretary of State, despite the fact that

such images were never tendered or admitted into the record in

accordance with the rules of evidence; and despite the fact that

Petitioner was never given an opportunity to compare such images

wi th the originals o::~to have the images established as

documentary evidence according to the rules of evidence

applicable to the superior courts of this state;

(d) The admini~::trative law judge, and consequently the


Page -5-


37/90

erred in failing to make a determination as to the proper

placement of the burden of proof and in failing to apply the

burden of proof in reaching factual and legal conclusions in

Petitioner's case, d.espite the fact that Petitioner specifically

filed a pre-trial "~otion For Determination of Placement of

Burden of Proof";

(e) The administrative law judge, and consequently the


erred in failing to find Respondent's deliberate failure to

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

Petitioner's challenge to Respondent's qualifications on that

independent basis;

(f) The administrative law judge, and consequently the

Secretary of State adopting the i0itial Decision of said judge,

erred in adopting the reasoning of the Indiana Court of Appeals

in Ankeny v. Governcr of Indiana and in finding that a person

automatically qualifies as a "natural born Citizen," pursuant to

Article II of the United States Constitution, by merely being

born in the United ~:tates, without regard to the citizenship of

his parents;

(g) The administrative law judge, and consequently the


erred in failing to properly construe the ruling of the United

States Supreme Court in Minor v. Happersett;

Page -6-


38/90

(h) The admin::.strative law judge, and consequently the

Secretary of State 2ldopting the initial Decision of said judge,

erred in finding that Respondent qualifies as a "natural born

Citizen" pursuant to Article II of the United States

Constitution, despite the fact that Respondent's father was not a

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

(i) The administrative law judge, and consequently the


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

Court, for a determination of appropriate action including a

finding of contempt, the facts of the contemptuous behavior of

Respondent (and Respondent's counsel) in knowingly,

intentionally, and deliberately failing to comply with

Petitioner's Notice to Produce served upon Respondent.

12.

Petitioner respectfully requests that this Court grant an

expedited hearing and review of this Petition due to the fact

that the Georgia Presidential Preference Primary Election is

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

weeks hence.

13.

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

respectfully requests that this Court order a stay of the Final

Decision of the Secretary of State finding Respondent eligible to

Page -7-


39/90

be included on the ballot in Georgia as a candidate for the

presidential primary election pending a final judgment of this

Court reviewing said Final Decision.

14.

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

entry of the Final Cecision by the Secretary of State.

15.

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

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

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

entire record of the proceedings under review.

WHEREFORE, Petitioner Carl Swensson respectfully requests

that this Court:

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

an expedited basis;

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

Secretary of State finding Respondent eligible to be included on

the ballot in Georgia as a candidate for the presidential primary

election pending a final judgment of this Court;

(3) Issue an order reversing the Final Decision of the

Secretary of State, finding that Respondent does not meet the

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

removing Respondent's name from the presidential ballot in

Georgia, and adjudg:..g Respondent in contempt of court for his

Page -8-


40/90

deliberate failure to comply with Petitioner's Notice to Produce

in theadministrath'e proceedings; and

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

deem just and proper.

This 15th day c:f February, 2012.




Page -9-


41/90

OFFICE OF STATE ADMINISTRATIVE HEARINGS

ST ATE 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.

BARACK OBAMA,

Defendant.

KEVIN RICHARD POWELL,

Plaintiff,

v.

BARACK OBAMA,

Defendant.

Docket Number: OSAH-SECST ATE-CE12151 36-60-MALIHI

Counsel for Plaintiffs: Orly Taitz

Counsel for Defendant: Michael Jablonski

Docket Number: OSAH-SECST ATE-CE12151 37-60-MALIHI

Counsel for Plaintiff: Van R. Irion

Counsel for Defendant : Michael Jablonski

Docket Number: OSAH-SECSTATE-CE1216218-60-Mi\LIHI

Counsel for Plaintiff: J. Mark Hatfield


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

Counsel for Plaintiff: J. Mark Hatfie ld



42/90

DECISION I

Plaintiffs 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 for

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

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

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

qualifications for holding the Office of the President of the United States. !d. The United

States 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 on

January 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 his

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

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

Court would entcr a default order against a party that fails to participate in any stage of a

proceeding. 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 merits

of their aTf,rumentsand evidence. The Court granted Plaintiffs' request.

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

or legal scholarship of Dl::fendant's attorney, Mr. Jablonski. This Decision is entirely

based 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 birth

certificate that is a compu ler-generated forgery, and that he does not otherwise possess

valid U.S. identification papers. Further, Plaintiffs submit that Mr. Obama has previously

held Indonesian citizenship, and he did not use his legal name on his notice of candidacy,

which is either Barry Soetoro or Barack Obama Soebarkah. (PI.s' Am. Compi. 3.)

At the hearing, PI~lintiffs presented the testimony of eight witnesses2 and seven

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

testimony and exhibits, th:is Court applies the same rules of evidence that apply to civil

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

to be given to any evidenl;e shall be determined by the Court based upon its reliability

and 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, to

be 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 the

witnesses 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 competent

evidence). 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 short ly thereaft l: 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 expert

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

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

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

presented, and she was nevl~rqualified or tendered as an expert in social security fraud, or

fraud investigations in g


46/90

n. Application of the '''Natural Born Citizen" Requirement

Plaintiffs allege that President Barack Obama is not a natural born citizen of the

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

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

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

U.S. 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 United

States citizen. Plaintiffs contend that, because his father was not a U.S. citizen at the time

of his birth, Mr. Obama is li;onstitutionallyineligible for the Office of the President of the

United States. The Court does not agree.

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

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

App. 2009). In Arkcny, the plaintiffs sought to prevent certification of Mr. Obama as an

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

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

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

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

allegiance," 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 oftlte United States: the Ufl/'(>.mlvedEnigma, 28 Md. L. Rev. 1 (J 968); Jill A. Pryor, Note, TheNatural-Born Citizen ClaLls(~and Presidential Eligibility: An Approach for Resoh'ing Two Hundred Years(!rUncertainty, 97 Yale L.J. 88'1(1988); Christina S. Lohman, Presidential Eligibility: TheMeaning ortheNatural-Born Citizen Clause. 36 Gonz. L. Rev. 349 (2000); William T. Han, Beyond PresidentialEligibility: The Natural Born Citizen Clause as a Source o/Birthright Citizenship, 58 Drake L. Rev. 457(2010).

6


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 decision

and analysis of Arkeny 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 only

mention of the term "natura1born citizen" in the Constitution is in Article II, and the term

is not defined in the Constitution).

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

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

that "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 or

naturalized in the United ~;,tatesand subject to the jurisdiction thereof, are citizens of the

United 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 as

defining 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 that Minor did not define

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

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

citizens would qualify as natural born, and this Court agrees. The Minor Court left open

the issue of whether a child born within the United States of alien parent(s) is a natural

born citizen.

Next, the Indiana Court looked to United States v. Wong Kim Ark, in which the

Supreme Court analyzed t1l1emeaning of the words "citizen of the United States" in the

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

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

child's birth, were subjecti of China "becomes at the time of his birth a citizen of the

United States, by virtue of the first clause of the fourteenth amendment .. .. " Id. at 686

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

provisions "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." /d. (citing Wong Kim

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

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

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

its history.'" Id. (citing WongKim Ark, 169 U.S. at 655) (internal citation omitted). The

Wong Kim Ark Court exte:nsively examined the common law of England in its decision

and 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. at

705.

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 subjec t 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 and

analyses of Minor 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 born

citizen if he was born in the United States because he became a United States citizen at

birth.1i

For the purposes cf this analysis, this Court considered that President Barack

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

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

CONCLUSION

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

election under a.c.G.A. 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 GEORGIA

DAVID 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- MALIHI

Counsel for Petitioners: Van R. Irion

Counsel for Respondent: Michael Jablonski

Docket Number: OSAH-SECST ATECE-1216218-60- MALIDI

Counsel for Petitioners: J. Mark Hatfield


Docket Number: OSAH-SECSTA TECE-1216823-60- MAUHI

Counsel for Petitioners: J. Mark Hatfield



52/90

FINAL DECISION!

Petitioners filed cancLidatechallenges pursuant to a.c.G.A. 21-2-5(b) contending that

Respondent docs not meet the State of Georgia's eligibility requirements for his name to be listed

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

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

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

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

final decision.

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

DENIED.

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 hereby

certify 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 30309-1523

Honorable Brian P. KempSecretary of Statestate of Georgia214 State CapitolAtlanta, Georgia 30334

Honorable Michael M. Malihi

Administrative Law JudgeOffice of State Administrative Hear.ings230 Peachtree Street NWSuite 850

Atlanta, Georgia 30303

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

addressed envelope with sufficient postage affixed thereto in

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

Jablonski at [email protected], by emailing same to

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

Judge Malihi at 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 OfFICE

lf~EPUTY CLERK SUPERIOR COUFULTON COUNTY, GA--MOTION FOR EXPEDITED REVIEW OR, ALTERNATIVELY,

FOR STAY OF :DECISION OF SECRETARY OF STATE AND FORPOSTPONEMENT OF. PRESIDENTIAL PREFERENCE PRIMARY ELECTION

Now comes Petitioner Carl Swensson, by and through

undersigned counsel, and moves the Court for an expedited review

of the above-captioned appellate proceeding or, in the

alternative, for a E:tay of the Final Decision of the Georgia

Secretary of State tlerein and for a postponement of the Georgia

Presidential Prefere~nce Primary Election, and in support of this

Motion, 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 Carl

Swensson's challenge to the qualifications of Respondent Barack

Obama, a presidenti~ll candidate, to seek and hold the Office of

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


F:ILAINTIFF'S EXHIBIT

u c..\\

Page -1-


55/90

2.

The Georgia Pre~sidential Preference Primary Election is

scheduled to take place on March 6, 2012, only two (2) weeks from

the 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 of

State in this matter.

4 .

Petitioner's afpeal involves, among other issues, a

significant issue of constitutional law, i.e. whether or not

Respondent, whose father was a foreign national and never a

United States citizen, meets the "natural born Citizen"

eligibility requirerr~nt of Article II, Section I, Clause 5 of the

United States Constitution.

5.

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

Court orders a stay of the Final Decision of the Secretary of

State and a postponement of the Georgia Presidential Preference

Primary Election per.ding a final judgment of this Court,

Respondent will likely claim that Petitioner's action is moot

after the holding of the Georgia Presidential Preference Primary

Election. 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 argument

in an effort to avoid a decision on the merits of this appeal.

6.

With regard to Petitioner'.s request for an expedited review

of this appeal, Petitioner shows that Uniform Superior Court Rule

6.7 ("Motions in 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 State

herein and for a postponement of the Georgia Presidential

Preference Primary Election, Petitioner shows that pursuant to

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

not itself stay the decision of the Secretary of State[,] ... the

reviewing court may Jrder a stay upon appropriate terms for good

cause shown." Furth2r, a.C.G.A. 5-3-28(b), applicable to

appeals to superior 8ourt, provides that "[t]he superior court

may issue such orders and writs as may be necessary in aid of its

jurisdiction 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 the

significant issue of constitutional interpretation raised by

Petitioner's action may be finally and decisively adjudicated,

this Court should g]~ant expedited review of the instant appeal

or, in the al ternat:.ve, the Court should grant a stay of the

Final Decision of the Georgia Secretary of State herein and a

postponement of the Georgia Presidential Preference Primary

Election currently ~;cheduled for March 6, 2012.

WHEREFORE, Peti.tioner Carl Swensson respectfully requests

that this Court grarlt the relief requested by Petitioner herein.

This 21st day of February, 2012.




Page -4-


58/90


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

certify that I have this day served the foregoing Motion For

Expedited Review or, Alternatively, For Stay of Decision of

Secretary of State 2md For Postponement of Presidential

Preference Primary E:lection upon:

Mr. Michael K. JablonskiAttorney at Law260 Brighton Road NEAtlanta, Georgia 30309-1523

Honorable Brian P. Kemp

Secretary of StateState of Georgia214 State CapitolAtlanta, Georgia 30334

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

addressed envelope with sufficient postage affixed thereto in

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

Jablonski at [email protected] and by emailing same

to Secretary Kemp at [email protected].

This 21st day of February, 2012.





59/90

IN THE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA

CARLSWENSSON,

Petitioner,

vs.

BARACKOBAMA

Respondent

Civil Action File Number

2012 CV211527

MOTION Ta DISMISS

Respondent 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 385850

2221-D Peachtree Road NEAtlanta, Georgia 30309404 [email protected]

PLAINTIFF'SEXHIBIT

1/ '0'"


60/90


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

Mr, Mark HatfieldAttorney at Law201 Albany AvenueP.O. Box 1361Waycross, Georgia 31502

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

mhatfieldcmvvavxcable.com.

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

MICHAEL JABLONSKIGeorgia State Bar Number 3;85850

2221- D Peachtree Road NE

Atlanta, Georgia 30309404-290-2977michael.jablonski (a:l comcast: net


61/90

IN THE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA

CARLSWENSSON,

Petitioner,

vs.

BARACKOBAMA

Respondent

Civil Action File Number

2012 CV211527

Brief in tiupport of Respondent's Motion to Dismiss

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

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

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

been upheld.1

1 See, 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, 3:08

GA - 2012-03-12 - SWENSSON v OBAMA (Appeal SCOGA) - Application for Discretionary Appeal

Documents

Transcript of GA - 2012-03-12 - SWENSSON v OBAMA (Appeal SCOGA) - Application for Discretionary Appeal