Replies

“If an appeal is even filed. Who knows what that Court will demand the plaintiff bring to Court if it is appealed.”

Hatfield says he will appeal and I expect the others to appeal, too, although Dr. Taitz may be required to defer to another attorney for the appeal.

If SOS Kemp affirms that Barry is NBC, then that can be contested. But the identity of Barry's father cannot be disputed because that was not contested by Hatfield and Irion. So the only thing that can be appealed is whether Ankeny and WKA's interpretation of Minor makes Barry NBC.

Taitz failed to properly qualify her witnesses or herself, so all of her claimed and proposed finding of fact were rejected by ALJ Malihi. Thus there were no conclusions of law from Taitz's hearing that can be appealed because there were no facts on which to base a legal conclusion, IIUC.

I don't think any new evidence can be provided by any of the parties, plaintiffs or Barry's team, but rather the Superior court will look ONLY at how the law was applied to the findings of fact by the ALJ, to the extent affirmed by SOS Kemp.

Key quote from the Handel case:

“OCGA § 21-2-5(e) directs the superior court to not substitute its judgment for that of the Secretary of State as to the weight of the evidence on questions of fact. The court may affirm the decision or remand the case for further proceedings.”

IIUC, if the superior court doesn't find that the facts support the SOS eligibility determination, the REMAND is the only thing the superior court can order, and there is no new evidence or testimony allowed on the facts. ONLY arguments contesting or supporting the application of the law to the facts is permitted during the appeal of an eligibility determination.

"If SOS Kemp affirms that Barry is NBC, then that can be contested. But the identity of Barry's father cannot be disputed because that was not contested by Hatfield and Irion. So the only thing that can be appealed is whether Ankeny and WKA's interpretation of Minor makes Barry NBC.

Taitz failed to properly qualify her witnesses or herself, so all of her claimed and proposed finding of fact were rejected by ALJ Malihi. Thus there were no conclusions of law from Taitz's hearing that can be appealed because there were no facts on which to base a legal conclusion, IIUC."

When a question of law is at issue, as here, we owe no deference to the trial court's ruling and apply the “plain legal error” standard of review. Glover v. Ware, 236 Ga.App. 40, 45(3), 510 S.E.2d 895 (1999). Moreover, “[w]here it is apparent that a trial court's judgment rests on an erroneous legal theory, an appellate court cannot affirm. [Cit.]” Gwinnett County v. Davis, 268 Ga. 653, 655, 492 S.E.2d 523 (1997). This is such a case. See Wood v. Dan P. Holl & Co., 169 Ga.App. 839, 841(2), 315 S.E.2d 51 (1984).

and

While the standard of review of a non-jury trial of disputed material facts is the clearly erroneous test under OCGA 9-11-52, here the trial court ruled on matters of law as to the claims in the affidavit of illegality and as a matter of law found that the claims lacked merit. Thus, the plain legal error standard of review applies, where the appellate court determines that the issue was of law, not fact, that there was no factual dispute, or that there was no discretion, so that the issue for review was whether the trial court made a plain legal error. See American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 348 (1) (392 SE2d 860) (1990); Uni-Worth Enterprises v. Wilson, 244 Ga. 636, 640 (2) (261 SE2d 572) (1979); Astin v. Carden, 194 Ga. 758, 764 (2) (22 SE2d 481) (1942); Hill v. Wadley Southern R. Co., 128 Ga. 705, 716 (7) (57 SE 795) (1907).

"Presidential eligibility is a national issue. Under our Constitution, ... [states] do not have power to change, add, or diminish the meaning of an Article II “natural born Citizen.” See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (states have no authority to change, add, or diminish the eligibility requirements for members of Congress)." - Mario Apuzzo, Esq.