powell v obama, proposed findings of fact and conclusions of law, georgia ballot access challenge...

8/3/2019 Powell v Obama, Proposed Findings of Fact and Conclusions of Law, Georgia Ballot Access Challenge 2-1-2012

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OFFICE OF STATE ADMINISTRATIVE HEARINGS

STATE OF GEORGIA

CARL SWENSSON,

Plaintiff

V.

BARACK OBAMA,

Defendant

*OCKET NO.: OSAH-SECSTATE-CE-1216218-60-MALIHI**OFFICE OF STATE ADMINISTRATIVE HEARINGS

STATE OF GEORGIA

KEVIN RICHARD POWELL,

Plaintiff

V.OCKET NO.: OSAH-SECSTATE-CE-1216823-60-MALIHIBARACK OBAMA,Defendant

PLAINTIFFS' PROPOSED FINDINGS OF FACTAND CONCLUSIONS OF LAW

Plaintiffs Carl Swensson and Kevin Richard Powell each filedwith the Georgia Secretary of State a challenge to thequalifications of Defendant Barack Obama to appear on the votingballot in Georgia as a candidate for the Presidency of the UnitedStates. Plaintiffs' challenges contend that Defendant Obama doesnot meet the "natural born Citizen" requirement of Article II,

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Section 1, Clause 5 of the United States Constitution regardingeligibility for the presidency.

Pursuant to Georgia law, the Office of the Secretary ofState referred Plaintiffs' challenges to this Court for hearings.Pursuant to motion of both Plaintiffs, the cases of PlaintiffsSwensson and Powell were consolidated for hearing and decision.

Pursuant to proper notice to all parties, the Courtconducted a hearing on January 26, 2012. Plaintiffs were presentat trial and submitted into the record, through counsel, evidenceand testimony pertaining to the issues herein. Defendant Obamaand his attorney, however, did not appear for trial and failed tosubmit any evidence or testimony whatsoever. Pursuant to themotion of counsel for Plaintiffs, the record was closed at theconclusion of trial.

The Court now makes the following Findings of Fact andConclusions of Law in these matters:

FINDINGS OF FACT

1. Plaintiff Carl Swensson is a natural person residing inClayton County, Georgia. He is a registered voter in the Stateof Georgia, and he is an elector eligible to vote for candidatesfor the Presidency of the United States, including presidentialcandidate Barack Obama, the Defendant herein.

2. Pursuant to 0.C.G.A. 21-2-5(b), Plaintiff Swenssontimely filed with the Georgia Secretary of State a written

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challenge to the qualifications of Defendant Obama to seek andhold the Office of the Presidency of the United States.Plaintiff Swensson contends that Defendant Obama does not meetthe "natural born Citizen" eligibility requirement of Article II,Section I, Clause 5 of the United States Constitution.

3. Plaintiff Kevin Richard Powell is a natural personresiding in Gwinnett County, Georgia. He is a registered voterin the State of Georgia, and he is an elector eligible to votefor candidates for the Presidency of the United States, includingpresidential candidate Barack Obama, the Defendant herein.

4. Pursuant to O.C.G.A. 21-2-5(b), Plaintiff Powelltimely filed with the Georgia Secretary of State a writtenchallenge to the qualifications of Defendant Obama to seek andhold the Office of the Presidency of the United States.Plaintiff Powell contends that Defendant Obama does not meet the"natural born Citizen" eligibility requirement of Article II,Section I, Clause 5 of the United States Constitution.

5. Defendant Barack Hussein Obama II (hereinafter "BarackObama"), on or before October 31, 2011, submitted a letter to theExecutive Committee of the Democratic Party of Georgia seeking tobe listed on the Georgia Democratic Presidential PreferencePrimary Ballot. Consequently, on November 1, 2011, GeorgiaDemocratic Party Chairman Mike Berlon submitted, pursuant to0.C.G.A. 21-2-193, the name of Defendant Obama to the Georgia

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Secretary of State's Office as a candidate to be listed on theGeorgia Democratic Presidential Preference Primary Ballot.

6. Defendant Barack Obama was born on August 4, 1961.Defendant's natural and legal mother was Stanley Ann D. Obama,and Defendant's natural and legal father was Barack HusseinObama.

7. Defendant's aforesaid father, Barack Hussein Obama, wasborn in Kenya and was a subject of Great Britain. Moreover,Defendant's aforesaid father, Barack Hussein Obama, was not acitizen of the United States as of the date of birth of DefendantObama in 1961 or at any other time whatsoever.

8. Despite being timely served with a Notice to Produce byPlaintiffs' counsel requiring Defendant to personally appear fortrial and to bring with him certain documents for use as evidenceby Plaintiffs at trial, Defendant Obama failed to appear for thetrial of these matters on January 26, 2012. Likewise,Defendant's attorney also failed to appear for trial. Noevidence or testimony was introduced into the record by or onbehalf of Defendant Obama at trial. The Court closed the recordat the conclusion of the January 26, 2012 trial.

9. The failure of Defendant Obama and defense counsel toappear for trial on January 26, 2012 was knowing and intentional,as demonstrated by Plaintiffs' Exhibit 12, a January 25, 2012

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letter written by defense counsel to Georgia Secretary of StateBrian Kemp.

CONCLUSIONS OF LAW1. Defendant Barack Obama, having initiated the submission

of his name as a candidate to be listed on the Georgia DemocraticPresidential Preference Primary Ballot, is subject to thejurisdiction of the Georgia Secretary of State and this Court inthe above-captioned proceedings for the purpose of determiningDefendant's qualifications to seek and hold the public office forwhich he is offering. O.C.G.A. 21-2-5.

2. Pursuant to O.C.G.A. 21-2-5(a), "[e]very candidatefor federal...office who is certified by the state executivecommittee of a political party or who files a notice of candidacyshall meet the constitutional and statutory qualifications forholding the office being sought."

3. Article II, Section I, Clause 5 of the United StatesConstitution, concerning "[e]ligibility for office of President,"provides in pertinent part that "[n]o Person except a naturalborn Citizen...shall be eligible to the Office of President...."

4. The burden of proof rests entirely upon Defendant Obama"to affirmatively establish his eligibility for office." SeeHaynes v. Wells, 273 Ga. 106, 108-109, 538 S.E. 2d 430, 433(2000). Plaintiffs are not required "to disprove anything

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introduce into the record evidence and testimony pertaining tothe merits of the issue of Defendant Obama's eligibility foroffice pursuant to the "natural born Citizen" requirement ofArticle II, Section I, Clause 5 of the United StatesConstitution. Plaintiffs' evidence established that Defendant'sfather, Barack Hussein Obama, was born in Kenya and was a subjectof Great Britain. Additionally, Plaintiffs established thatDefendant's aforesaid father, Barack Hussein Obama, was not acitizen of the United States as of the date of birth of DefendantObama in 1961 or at any other time whatsoever.

8. The United States Supreme Court's decision in Minor v.Happersett, 88 U.S. 162, 167, 22 L. Ed. 627, 21 Wall. 162 (1875),is binding authority for the proposition that the Article IIphrase "natural born Citizen" refers to a person born in theUnited States to two (2) parents who were then (at the time ofthe child's birth) themselves United States citizens.

9. Applying the aforesaid rule of Minor v. Happersett inthe instant cases, the Court concludes that Defendant Obama doesnot meet the Article II "natural born Citizen" requirement forthe presidency, as Defendant Obama's father was not a UnitedStates citizen at the time of Defendant's birth. Defendant Obama

is therefore ineligible for the office he seeks, and the Courtfinds that Plaintiffs' challenges herein should be sustained ontheir merits, notwithstanding the Court's previous conclusions in

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paragraphs 5 and 6 above that the Plaintiffs are entitled tojudgment based upon the separate issues of burden of proof anddefault, respectively.

CONCLUSION AND REPORT TO THE SECRETARY OF STATE

For the foregoing reasons, the Court concludes and herebyreports to the Secretary of State that Plaintiffs' challenges tothe qualifications of Defendant Barack Obama should be sustainedand upheld; that Defendant Barack Obama is not entitled to appearon the primary or general election ballots in the State ofGeorgia as a candidate for the Office of the President of theUnited States; and that Defendant Barack Obama's name should bewithheld from the presidential ballot or, if the ballots havebeen printed, should be stricken from the presidential ballot.

Thisday of2012_Michael M. MalihiAdministrative Law Judge

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J ark HatfiAtt ney fortiffsGeorgia Bar No7509CERTIFICATE OF SERVICEI, J. Mark Hatfield, Attorney for Plaintiffs, do herebycertify that, pursuant to the Order entered in the above-captioned matters regarding electronic service, I have this dayserved the foregoing Plaintiffs' Proposed Findings of Fact andConclusions of Law upon:Michael [email protected] email addressed thereto in order to insure proper delivery.This 1st day of February, 2012.HATFIELD & HATFIELD, P.C.201 Albany AvenueP.O. Box 1361

Waycross, Georgia 31502(912) 283-3820

powell v obama, proposed findings of fact and conclusions of law, georgia ballot access challenge...

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