powell v obama, reply brief to petitioner's motion for emergency hearing, fulton county superior...

8/2/2019 Powell v Obama, Reply Brief to Petitioner's Motion for Emergency Hearing, Fulton County Superior Court, 2-27-2012

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IN THE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA

KEVIN RICHARD POWELL,

Petitioner,

vs.

BARACK OBAMA

Respondent

Civil Action File Number

2012 CV 211528

___________________________________

REPLY BRIEF TO PETITIONERS MOTION FOR AN EMERGENCY HEARING

Petitioners motion should be denied for four reasons. First, if petitioner believes

that the matters he raises will be moot upon commencement of the election then it is

already moot as voting has started. Second, petitioner is not entitled to a hearing as the

statute relied upon as justification for the appeal does not mandate a hearing; the only

requirement is that the Court review the record filed by the Secretary of State. Third,

petitioner filed this action against the wrong defendant. The challenge to a decision of

the Secretary of State should be filed against the Secretary of State. Fourth, the

Presidential Preference Primary is not an election, as no one is elected to anything, but,

in the words of the statute, is simply an opportunity for Democratsto express their

preference for one person to be a candidate for nomination. O.C.G.A. 21-2-191. No

one is elected, or even nominated, in the preference balloting. Fifth, neither this Court

nor the Secretary of State can interfere with internal processes of a political party

leading to the naming of individuals to appear on the ballot. Thus, this court lacks

subject matter jurisdiction to grant the relief sought.


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I. NO EMERGENCY EXISTS AS THE ELECTION IS ALREADY UNDERWAY.

Petitioner fears that the Court will decline to rule on its petition once the election

starts on the grounds that the action is moot. The election has already started. In person

early voting began on February 13. Ballots have been printed, machines have been

programmed, and every county in Georgia has begun the process of recording

preferences so that the political parties can apportion delegates to the nominating

conventions.

Petitioner does not state what, if any, harm could be caused from the balloting.

No one is elected or nominated. The purpose of the polling is to allow political parties to

determine how the Georgia delegation to the nominating convention apportions pledged

delegates. Petitioners request to delay balloting would force the Secretary of State to

undertake enormous additional costs of running a second election at a later date all

for no reason.

II. O.C.G.A. 21-2-5(e) DOES NOT REQUIRE ANY HEARING

Assuming that the qualification review statute applies1, nothing in O.C.G.A. 21-

2-5(e) requires the Court to hold any hearing.2 The statute simply says:

The review shall be conducted by the court without ajury and shall be confined to the record. The court shall notsubstitute its judgment for that of the Secretary of State as tothe weight of the evidence on questions of fact.

1 President Obama maintains that O.C.G.A. 21-2-5 does not apply to Presidential Preference Primariesbecause the PPP is not an election no one is nominated, elected, selected, authorized to take office,qualified, nor is a fee charged as in an election. Under the United States Constitution and the laws ofGeorgia voters select presidential electors who then select a president. No presidential candidate ever ispresented for election by ordinary voters.2 The Georgia Attorney General has taken the position in numerous qualification review proceedings thatno hearing is required by the terms of the statute. Judicial economy suggests that the Court review therecord on its own to determine whether appropriate standards were met.


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Nothing in the statute requires a hearing. The procedure established by the

legislature differs in this regard from the ordi9nary procedure established for Superior

Court review of an agency decision, which specifically requires a hearing. See, O.C.G.A.

Section 50-13-19. The Court may act on its own based upon the record before it.

III. PETITIONER FILED AGAINST THE WRONG PARTY

The request for review pending before this Court names President Obama as the

respondent. The relief sought, however, is not relief that the respondent can effect if the

appeal is sustained by the Court. The proper party respondent when challenging a

qualification decision made by the Secretary of State is the Secretary of State. The

absence of the Secretary of State from this proceeding is fatal.

Petitioner requests relief only against the Secretary of State, not against President

Obama, when he demands a stay of the Final Decision of the Secretary of State.

(Petition, p. 8). In order to grant the relief sought by the petitioner the Secretary of State

needs to be before the court. He is not. The Civil Practice Act requires the issuance of a

summons signed by the clerk of court in order for the court to exercise power.. The

issuance of summons of process signed by the clerk is a necessary part of acquisition of

jurisdiction.Schafer v. Wachovia Bank of Georgia, 248 Ga.App. 466, 546 S.E.2d 846

(2001). No summons was issued commanding the appearance of the Secretary of State

in this matter.

The failure to serve summons deprive the court of personal jurisdiction over the

Secretary of State, and necessarily deprives this Court of jurisdiction to grant the relief

sought in the petition.Bonner v. Bonner, 272 Ga.App. 545, 533 S.E.2d 72 (2000);


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Wilkinson v. Udinsky, 242 Ga.App. 464, 530 S.E.2d 215 (2000); Guerrero v. Tellez, 242

Ga.App. 354, 529 S.E.2d 639 (2000).

"In the absence of such legal service or a waiver thereof, the court has no

jurisdiction to enter any judgment in the case unless it be one dismissing the case for

lack of jurisdiction. [DeJarnette Supply Co. v. F.P. Plaza, Inc., 229 Ga. 625, 193 S.E.2d

852 (1972)]. Stamps v. Bank South, N.A., 221 Ga.App. 406, 407-8, 471 S.E.2d 323

(Ga.App. 1996). Jurisdiction over a party must be established before the court can enter

any ruling binding a party such as the Secretary of State or the ruling is declared null

and void. SeeEstate of Marjorie C. Thurman v. Dodaro, 169 Ga.App. 531, 532(1), 313

S.E.2d 722 (1984). See also, Lee v. G.A.C. Finance Corp., 130 Ga. App. 44, 45 (4) (202

SE2d 221) (1973).

Defendants knowledge that the suit exists does not substitute for compliance

with service of process statute. Williamson v. Basenback, 298 Ga.App. 567, 680 S.E.2d

577 (2009). See also,Duffy v. Lyles, 281 Ga.App. 377, 636 S.E.2d 91 (2006); Campbell

v. Coats, 254 Ga.App. 693, 561 S.E.2d 293 (2002);Finlon v. W&J Factors, Inc., 253

Ga.App. 754, 560 S.E.2d 273 (2002); Cherokee Warehouses, Inc. v. Babb LumberCo.,

244 Ga.App. 197, 535 S.E.2d 254 (2000); Walker v. Bord, 225 Ga.App. 242, 483 S.E.2d

675 (1997); In the Interest of D.R.W., 229 Ga.App. 571, 574(1), 494 S.E.2d 379 (1997),

Stamps v. Bank South, N.A., 221 Ga. App. 406, 409, 471 SE2d 323 (1996);Rose v. Ryan,

209 Ga.App. 160, 433 S.E.2d 291 (1993);Fisher v. Muzik, 201 Ga.App. 861, 412 S.E.2d

548 (1991).

For example, in the latest qualification challenge to go before the Georgia

Supreme Court, the parties were the Secretary of State and the party losing in front of

the agency. The succeSince the Court is without jurisdiction over the Secretary of State,


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the Court cannot issue the relief sought in either the petition or this emergency

request.

IV. NEITHER THIS COURT NOR THE SECRETARY OF STATE MAYINTEREFERE WITH THE CHOICE OF A POLITICAL PARTY AS TONAMES PLACED ON A PRESIDENTIAL PREFERENCE PRIMARYBALLOT.

The Democratic Party of Georgia determines names to include on its Presidential

Preference Primary ballot at its sole discretion. O.C.G.A. 21-2-193. A state political

party enjoys a constitutionally protected freedom which includes the right to identify

the people who constitute this association that was formed for the purpose of advancing

shared beliefs and to limit the association to those people only. SeeDemocratic Party

of U.S. v. Wisconsin, 50 U.S. 107, 101 S.Ct. 1010, 1019, 67 L.Ed.2d 82 (1981).Duke v.

Cleland, 954 F.2d 1526, 1530-1 (11th Cir. 1992). First amendment associational rights of

a political party are most often litigated in the context of a party refusing to allow a

name to appear on a primary ballot (such as inDemocratic Party of U.S. v. Wisconsin

or Duke v. Cleland) but the reverse is also true: a political party enjoys the exclusive

right to dictate names on its primary ballot. The right to associate not only contemplates

the ability to exclude but, necessarily, who to include. The Fourteenth Amendment

prohibits the Secretary of State from infringing on associational rights of the Democratic

Party of Georgia and its members.Kusper v. Pontikes, 414 U.S. 51, 57, 94 S.Ct. 303, 307,

38 L.Ed.2d 260;Williams v. Rhodes, 393 U.S. 23, 30-31, 21 L.Ed.2d 24. See also,

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d

1488;Ferency v. Austin, 666 F.2d 1023, 1027 (6th Cir., 1981).

Apportionment of delegates as a result of preference primary results constitutes an

internal party matter. The Secretary of State, even if believing that the challengers
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claims represent a legitimate position, may not interfere with the traditionally

recognized autonomy of the political party's internal decisionmaking.Belluso v.

Poythress, 485 F.Supp. 904, 912 (N.D. Ga., 1980); See,Ripon Society v. National

Republican Party, 173 U.S.App. D.C. 350, 525 F.2d 567, 584-86 (D.C.Cir. 1975) (en

banc), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976).

The citizenship issue sought to be litigated by the plaintiff cannot be raised in the

context of a party preference primary that exists solely to apportion delegates but

neither elects nor nominates. Only the Democratic Party of Georgia can determine

qualifications of candidates named on the Presidential Preference Primary ballot. See,

Duke v. Cleland, 954 F.2d 1526 (11th Cir., 1992);Belluso v. Poythress, 485 F.Supp. 904

(N.D. Ga., 1980). Every Georgia case considering the issue ruled against the plaintiff.

Rhodes v. MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), affd, 2010 WL 892848

(11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009); Terry v. Handel,

08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284

(Ga. Supreme Court), reconsideration denied, No. S09A1373; Cook v. Good et al,

4:2009cv00082, 2009 WL 2163535 (M.D.Ga. July 16, 2008).

Since the state is prohibited from interfering with the choice made by the

Democratic Party of Georgia, the Secretary of State lacked jurisdiction to consider the

qualification challenge and this Court may not review the decision.

Respectfully submitted,

This 27th day of February, 2012.


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_________________________________MICHAEL JABLONSKIGeorgia State Bar Number 385850

2221-D Peachtree Road NE

Atlanta, Georgia [email protected]


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CERTIFICATE OF SERVICE

I hereby certify that I 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

[email protected].

This 27th day of February, 2012.

_________________________________MICHAEL JABLONSKIGeorgia State Bar Number 385850

2221-D Peachtree Road NE

Atlanta, Georgia [email protected]
mailto:[email protected]:[email protected]:[email protected]

powell v obama, reply brief to petitioner's motion for emergency hearing, fulton county superior...

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