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Posted on 02/04/2012 10:04:54 AM PST by Seizethecarp
The Court held: “For purposes of this analysis, this Court considered that President Barack Obama was born in the United States. Therefore, as discussed in Arkeny [sic meant Ankeny], he became a citizen at birth and is a natural born citizen.”
But there is no evidence before the Court that Obama was born in the United States. The court can only rest its finding of fact on evidence that is part of the court record. The judge tells us that he decided the merits of the plaintiffs’ claims. But he does not tell us in his decision what evidence he relied upon to “consider[]” that Obama was born in the United States.
The court did not engage in its own thoughtful and reasoned analysis of the meaning of an Article II “natural born Citizen,” but rather relied only upon Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009), transfer denied, 929 N.E.2d 789 (2010), a state-court decision which erred in how it defined a “natural born Citizen.”
The court says that Ankeny is persuasive. The court does not show us why Ankeny is persuasive other than to just provide some quotations from the decision. On the contrary, upon close analysis, we can see that Ankeny is far from persuasive on the definition of a “natural born Citizen.” The court’s decision can only be as sound as the Ankeny decision may be. But an analysis of that decision shows that it was incorrectly decided as to its definition of an Article II “natural born Citizen.”
(Excerpt) Read more at puzo1.blogspot.com ...
Your quotes affirm that the appeals court will only review de novo (from scratch) the conclusions of law, and they own no deference to the trial judge (Malihi) in applying the law to the facts that the trial court found.
“Malihi seems to be the sole specialist in eligibility challenges, IIRC.”
Per philman_36:
“That has got to be a joke, right?”
The Admin Law Courts in GA appear to have specialized jurisdictions with Malihi’s courts being designated as the court that will hear eligibility challenges...no joke!
The most recent precedent setting appeals cases in GA (at least the ones quoted by Fogbow’s GA members of the Bar, came up from Malihi’s rulings in his court.
Malihi did make an error after he issued a pre-trial Order for Defendant to prove his eligibility to Plaintiff. The appropriate adjudication, regardless of Plaintiff’s request to hear the case on the merits, was to issue a Default Judgment against Defendant for not showing and proving himself eligible to Plaintiffs.
In the Farrar case, Malihi issued a Summary Judgment for Defendant after no opposition of was offered to Plaintiff, Farrar, taking the stand and identifying himself as GA voter who objected to Ballot placement of the Defendant.
Summary Judgment in civil suits is reveiwable, de novo.
O.C.G.A. § 9-11-56 - Summary judgment
(h) Appeal. An order granting summary judgment on any issue or as to any party shall be subject to review by appeal.
you forgot “plaintiff’s lawyers do not know what they are doing”.
“Summary Judgment in civil suits is reviewable, de novo.”
This is false, IMO. IIUC, a summary judgment is ALWAYS a pretrial ruling on a motion which ALWAYS prevents a trial on the merits from taking place...unless overturned.
In Judge Malihi’s decision he explicitly states that there were, in effect, two separate hearings “on the merits,” one for Farrar (Taitz) on document fraud and one for all the others on the NBC issue.
Because the trial judge assessed the fact evidence from Farrar “on the merits” and found no probative value for any of the Farrar evidence and testimony, there will be NO DE NOVO appeal hearing on the Farrar facts.
Without any facts, Malihi could not make any conclusions of law that could be reviewed by an appeals court...so Farrar and Dr. Taitz have Zero issues on appeal other than to assert gross error, but due to Dr. Taitz poor lawyering that will not happen, IMO. Only the NBC conclusion of law based on Ankeny can be appealed, IMO.
It was a big mistake to reject the ALJ’s offer of entry of a default judgment in favor of the plaintiffs.
Judge tells you he is willing to enter a default judgment, you always take it. Overcoming a default judgment is almost impossible when the defendant has no meritorious defense OR no excusable neglect for not filing an answer that addresses the merits of the case.
The only problem with your conclusion is that the Constitutional requirement is the the President be a natural born citizen.
Being born in the United States or being naturalized is not the same as “natural born”
If you knew the the rules of Constitutional construction you would know that the term “natural born” must mean something different than either “naturalized” or “born in the United States. You must also construe with this the portion of the Constitution that exempted those within the United States at the time the Constitution was enacted. Under the rules of Construction, it must be assumed the legislature knew exactly what it was doing at the time it was done. Congress knew that the requirement for natural born citizenship was in the constitution; and it must be assumed that Congress did not intend to change the requirement of natural born citizenship, or it would have done so in unambiguous language.
Your interpretation of the remaineder of the opinion in Patlin’s post is simply not relevant to the issue regarding Obama’s eligibility. FYI, the word “or” has a very different legal meaning than you seem to think.
If this were not the case, what purpose is served by the term “natural born”?
What many people are failing to understand is that the opinion of an ALJ is nothing more than his opinion. The SoS can decide whatever he wants. It is his decision that can be appealed by either party. The SoS is free to ignore the opinion of the ALJ and may do so given the extreme weakness of the ALJ’s conclusions.
Here is where you fall off the track. The Constitution ONLY affords for 2 types of citizenry, born or naturalized, A1 & A2. Born a citizen means that Congress does not dictate whether you are a citizen or not. The fact one is “born” to citizen parentS is that which produces the “natural” increase of any given society. The fact that Congress decides further “increase” via naturalization which includes renouncing all former allegiances thereby leaving a single allegiance to the US produces the same result. single allegiance, either at birth or naturalization. The fact that Congress allows for ‘jus soli’ citizenship regardless of the parents allegiance is citizenship via fiat law also know as legislating from the bench (WKA), executive order or just rewriting the law and publishing it without actually voting on it.
I am very well aware of constitutional construct and the way the 14th is constructed, born & naturalized must produce the same result otherwise they would have been separated out as follows...
born ,(comma) or “naturalized & subject to the jurisdiction”
But they were not separated, they were conjoined
born or naturalized ,(comma) and “subject to the jurisdiction”
...thereby joining them together which results in a single allegiance that forms one category as a whole and that category being the increase in the citizenry, either at birth or at the time of naturalization. Single allegiance at birth produces the "natural" increase to society. Get the picture?
Take your time, I'm not going anywhere (unless I make the mods mad again).
And the difference between “natural born” and “naturalized” is?
If naturalized does not encompass everything within the definition of natural born, they must have different meanings.
A reasonable person would recognize that “natural born” is more restrictive than “naturalized.” They are, therefore, not the same.
ALJ are assumed to not be prejudiced by evidence or testimony introduced that is later overruled or stricken from the record. For example, an ALJ will accept into evidence a document that is later overruled and dismissed as hearsay. It is assumed the ALJ won’t be prejudiced by seeing the stricken evidence in the adjudication.
If you’ll recall, Obama’s attorney motioned for a dismissal pretrial and the Judge denied the motion with a quip there may be a good reason for dismissal, but none was cited.
I realize the Judge didn’t call it an Order for Summary Judgment, but that’s what it is.
Now, we know the Judge was hinting at a Motion for Summary Judgement by the Defendant. It’s the only logical solution to hearing testimony from the Plaintiff and examining evidence from the Plaintiff and then ruling for the Defendant when the Defendant offered no opposition, testimony or evidence.
I just find it ironic(and confusing) that a hearing about wether or not a candidate is eligible for an office, that requires the candidate to be a “natural born Citizen”, completely ignores the one supreme court case the explicitly states what a “natural born Citizen” is!
One would think that a lower court would need to address this case one way or the other? But I guess it’s true that a court IS much like
a fiefdom, and a judge it’s monarch!
Had the court at least mentioned MInor, and commented on it , the ruling may have made some sense - but to not even mention it??? Judge Malihi was declaring himself to be a third rate hack!
You would be correct and 14th agrees with you per the “subject to the jurisdiction” clause. The former(born) never owed allegiance to a foreign nation and the later(naturalized) did “UNTIL” renouncing the foreign allegiance and putting on that of the United States. The only difference is that the former(born) can attain to the presidency and the later(naturalized) may not.
But alas the 14th is not an Amendment that created any citizens, it is an amendment to protect the persons freed by the Emancipation Proclamation & enforced by the 13th Amendment. The 14th Amendment is a “protection” amendment, just as all the other amendments protect certain rights. It forced the slave states to recognize all free persons subject to the jurisdiction of the United States(owing allegiance “ONLY” to the US), regardless of color, as citizens.
No. That was the defendant's motion to quash Orly's subpoena for Obama to appear.
“I realize the Judge didn’t call it an Order for Summary Judgment, but that’s what it is.”
Simply wrong. The judge declared that the hearings were held on the merits at the request of all of the plaintiffs. Findings of fact were made and conclusions of law were applied by the judge. A summary judgment is only granted pretrial and only when the moving party can convince the judge that the other party would lose even if their claims were proved true.
“Now, we know the Judge was hinting at a Motion for Summary Judgment by the Defendant.”
No. Judge Malihi was clearly hinting that Obama’s attorney Jablonski should file an amended motion to quash (MtQ) the subpoena for Obama to appear citing some case law in support of the motion...which was missing in the MtQ that the judge dismissed. Jablonski had a week to re-file an improved MtQ following Malihi’s suggestions, but the Obama legal team decided that it was better to pull a no-show and go over the head of the ALJ Malihi and demand that the GA SOS Kemp exercise his discretion to cancel the hearing claiming that it was moot according to some GA statutes.
That depends on what your legal goal is.
If these plaintiffs had taken the default, I believe that Malihi would have ruled that Barry be removed the ballot. If the plaintiffs took the default, Malihi's recommendation to SOS Kemp would not show that Barry was ineligible to be POTUS, but only that he failed to defend having his name on the ballot.
Win, lose or draw, if the default had been taken, there would have been no findings of fact and conclusions of law resulting from a hearing on the merits that on appeal would form the basis of a SCOTUS ruling that Obama was not NBC.
Unchallenged allegations of fact are to be accepted as verities. IOW, what you don't deny; you admit.
“Unchallenged allegations of fact are to be accepted as verities. IOW, what you don’t deny; you admit.”
IIUC that is NOT true in an ALJ hearing. The ALJ has broad discretion regarding what claims in the pleadings are credible and probative.
IIUC, if the defendant doesn’t show up for an eligibility hearing, the ALJ grants the statutory remedy requested by the plaintiffs which was removal of Barry from the ballot...period. A default removal from the ballot would NOT have been a ruling that the defendant candidate was ineligible, only that the candidate didn’t show up to defend that eligibility as required by statute.
No facts or testimony are found by the court to be factual in the event of a default.
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