I read through the posting history as well. I'm thinking that maybe, just possibly. . .
Posted on 02/12/2012 10:09:40 AM PST by Oldpuppymax
“This is an outrage, an absolute outrage,” Attorney Orly Taitz told a radio audience in Western New York. She believes Judge Michael Malihi, a Clinton era appointee, is from Iran which could have a bearing if he is steeped in Sharia Law.
When he brought down a favorable decision for Obama’s appearing on state ballots, Taitz sent by overnight courier a 23 page appeal to Georgia Secretary of State Brian Kemp pleading with him to ignore the judge’s advisory decision – to no avail.
Kemp rubber stamped the Malihi decision, and now the appeal process begins in earnest. Plaintiff attorney J. Mark Hatfield will escalate this case to the appellate level immediately.
With emergency appeals well in place before Georgia’s March 6 Super Tuesday, Hatfield told World Net Daily: ”I will be filing that on behalf of Carl Swensson and Kevin Richard Powell just as soon as I can get it drafted!”
Taitz told her listeners: “It was abundantly clear. .that Judge Malihi was under an outside pressure to rush the case.” Her appeal contains these three key procedural points: Malihi refused to allow her to properly present her opening statement; he rushed plaintiff witnesses; he would allow only the Natural Born Citizen argument.
But what Malihi did was unprecedented because he based his decision on the Arkeny [sic] v. Daniels case out of Indiana which was NEVER cited by the defense! “A presiding judge cannot suddenly pull out of a hat some case,” Taitz fumed.
Trying to follow up on the Malihi Iranian angle proved...
(Excerpt) Read more at coachisright.com ...
Actually, the OSAH rules say, in part :
(1) The agency shall bear the burden of proof in all matters except that:
(a) in any case involving the imposition of civil penalties, an administrative enforcement order,
or the revocation, suspension, amendment, or non-renewal of a license, the holder of the license
and the person from whom civil penalties are sought or against whom an order is issued shall
bear the burden as to any affirmative defenses raised;
(found at http://www.osah.ga.gov/documents/procedures/administrative-rules-osah.pdf )
If being excluded from a ballot is a civil penalty, then this clearly states that the burden of proof falls on the person “from whom civil penalties are sought”.
Another important piece regards what is required in order for a summary determination of facts to be requested:
“(1) A party may move, based on supporting affidavits or other probative evidence, for
summary determination in its favor on any of the issues being adjudicated on the basis that there
is no genuine issue of material fact for determination...
(4) Affidavits shall be made upon personal knowledge, shall set forth facts that would be
admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein. Sworn or certified copies of all documents to which reference is made in
an affidavit shall be attached thereto and served therewith. Where facts necessary for summary
determination are a matter of expert opinion, such facts may be resolved on the basis of
uncontroverted affidavits or testimony of expert opinion”
Notice that supporting affidavits or other probative evidence is required, and any documents referenced must be accompanied by sworn or certified copies of the same. The principle here is that if you’re going to claim that there is no dispute over the facts, you have to be competent to testify regarding the facts and have to provide sworn or certified copies of the documents on which you base your claim. The same principle applies to anything of which judicial notice is made; it has to be able to be challenged so that the truth or genuineness of the claim has to be documented.
Regarding the rules of evidence to be applied, OSAH says:
“616-1-2-.18 Evidence; Official Notice.
(1) As provided in the APA, the Administrative Law Judge shall apply the rules of evidence as
applied in the trial of civil nonjury cases in the superior courts and may, when necessary to
ascertain facts not reasonably susceptible of proof under such rules, consider evidence not
otherwise admissible thereunder if it is of a type commonly relied upon by reasonably prudent
persons in the conduct of their affairs. At the discretion of the Administrative Law Judge, such
evidence which may be admitted includes the following: ...
(e) documentary evidence in the form of copies if the original is not readily available, if its use
would unduly disrupt the records of the possessor of the original, or by agreement of the parties.
Upon request, parties shall have an opportunity to compare the copy with the original.”
This says that Malihi “may, when necessary to
ascertain facts not reasonably susceptible of proof under such rules, consider evidence not
otherwise admissible”. Why would Obama’s birth facts be “not reasonably susceptible of proof under” the rules of evidence for the superior courts? That would only be the case IF OBAMA DIDN’T HAVE ANY CERTIFIED COPY OF A BIRTH CERTIFICATE - in which case, the computer image would have to be a fake anyway. In such a case, the judge could consider baptismal records, affidavits filed in support of a late birth certificate, etc. But those would only be necessary if Obama had no valid birth certificate meeting the evidentiary requirements for the superior courts.
Regarding the rules of evidence that applies to superior courts - GA’s rules of evidence are based on the Federal Rules of Evidence. Here is a VERY relevant piece that talks about how computer printouts have to be authenticated, at http://www.lectlaw.com/files/crf03.htm . The standards are WAY above anything Irion did when presenting the computer image.
I’ve wasted way too much time on this and will end up getting at most a couple hours of sleep tonight and tomorrow because I took the time to look this up. Suffice to say that the OSAH’s standards for evidence are FAR, FAR above anything that Malihi adhered to with an online image of a claimed birth certificate. OSAH does NOT authorize Malihi to accept a computer image of a birth certificate when a certified copy would reasonably be available. Malihi overstepped his bounds.
The burden of proof falls on Obama. He failed to meet that burden. Malihi overstepped his bounds by accepting evidence that would only be admissible if Obama had no valid birth certificate and could thus not GET a certified copy of a birth certificate.
That’s exactly what a bunch of us have been saying and there you have it stated right in the statute governing OSAH.
You can point to hardly even a dozen attorneys, in the entire country, who agree with you.
You can not point to a single Conservative organization that agrees with you.
You can not point to a single elected official, from either Party, who agrees with you.
YOU are wrong.
There are two forms of Citizenship, in the USA
Natural Born
Naturalized
PERIOD!
I read through the posting history as well. I'm thinking that maybe, just possibly. . .
“The agency shall bear the burden of proof in all matters”
Now just who requested the hearing? That's right - the agency known as the Georgia Secretary of State.
Your (4) shows why Orly imploded in such a spectacular manner.
If the issue was simply Obama presenting a BC, why did Hatfield, Irion and Orly present a case at all? Why didn't they simply ask for the BC? Could it be that, after accusing Obama of not being eligible, they actually had to prove their case?
I think the judge knows what he is doing. Notice that there is no hue and cry from the Georgia legal community? It is almost as if they think the judge handled the issue correctly. Think about it.
It’s a disservice to continually promote a false theory of minor’s being unable to voluntarily renounce their U.S. Citizenship to protect Obama.
As I mentioned, a Locally Employed Staff member of the U.S. Embassy where the minor renounces assist the minor with renunciation with the CAO providing guidance to the SoS as to the veracity of the renouncement. It’s xenophobic and counter-intuitive to promote a theory U.S. Citizens do not want to be citizens of the country they’ve chosen to live in.
You simply ignore the fact there are State Department policies for renunciants who cannot read or speak English to assist the renunciant with expatriation. You want Obama to be eligible, so you fantasize State Department employees fight to keep Obama as a U.S Citizen. It’s not true. They would bend over backwards to help him renounce because it’s xenophobic not to.
It’s a disservice to continually promote a false theory of minor’s being unable to voluntarily renounce their U.S. Citizenship to protect Obama.
As I mentioned, a Locally Employed Staff member of the U.S. Embassy where the minor renounces assist the minor with renunciation with the CAO providing guidance to the SoS as to the veracity of the renouncement. It’s xenophobic and counter-intuitive to promote a theory U.S. Citizens do not want to be citizens of the country they’ve chosen to live in.
You simply ignore the fact there are State Department policies for renunciants who cannot read or speak English to assist the renunciant with expatriation. You want Obama to be eligible, so you fantasize State Department employees fight to keep Obama as a U.S Citizen. It’s not true. They would bend over backwards to help him renounce because it’s xenophobic not to.
Soooooo . . . . . . in your world, the Supreme Court of the United States and the Constitution carry no weight of law, is that correct??
And, in your world the fact that a growing majority of the country don't believe that Obama was born in the United States carries no weight, is THAT right??
Attorneys may practice law, but they do not make law unless they are elected to either a legisative body (such as the Congress or a state legislature) or they are an activist who is elected or appointed as a judge.
From what you are telling me, we are a country of men and NOT laws!!
BTW, the stuff you sent me from the Immigration and Naturalization Service does NOT trump the Constitution. The Constitution (shredded by the left as it has been) is STILL and always has been the supreme law of the land!! I could care less about legal popularity contests such as how many attorneys or organizations, etc., agree with me. America is not run by American Idol type popularity contests, it is run on the basis of law. What counts is what the law states and what the law states is that your main man, Obama, is NOT eligible to be POTUS according to the Constitution of the United States of America.
Second, it is an EXTREMELY LIBERAL POSITION THAT THE SUPREME COURT IS THE LAST SAY ON ANY MATTER! The Congress has coequal rights and responsibilities and duties to define, implement and enforce the Constitution.
Congress has made and changed the law several times, concerning Citizenship.
In the opinion of the entire Congress, Natural Born Citizen means Citizen at Birth and NOTHING else!
Congress gets to determine these matters. Congress actually has MORE power, here, than does the Supreme Court.
All 50 States sent Electoral College Delegates, who all voted for either Obama or McCain.
Unfortunately, McCain lost and Obama won.
Then, CONGRESS ACCEPTED ALL OF THE VOTES, for BOTH McCain and for Obama!
Again, the Birthers are actually supporting a very liberal idea. It is wrong to think that the Supreme Court is “Supreme” over anything other than the lower Courts.
Congress declared Obama eligible.
Congress declared McCain eligible.
Congress has that power.
STOP trying to give more power to the Courts!
NOWHERE in the Constitution, does that document give full “SUPREME” power to the Supreme Court to determine Constitutional issues.
Congress can, by simple majority legislation, tell the Court that it is wrong, and then tell the Courts that they have no jurisdiction in the matter, anymore, in any case that would require any deviation from Congressional interpretation, to prevail.
Newt Gingrich agrees with me on this point. I suggest you go to Newt.org and educate yourself.
Congress is COEQUAL, and not subordinate to the Courts.
Newt.org
I suggest EVERYONE visit Newt’s website, as very few people seem to understand Newt’s points about the Courts.
Newt’s plan to rein in the Courts is wonderful.
The COURT gave ITSELF “Supreme” power. The Constitution NEVER gave the Court such power.
Click on the links, on this page.
Newt has a long, 54 page plan to put the Courts back in their place!
Judicial Supremacy is a very liberal idea, and we need to fight back.
Birtherism is, in many ways, a very liberal idea in its strategy and design. Congress DOES have much more power than the Birthers understand.
Also, the first attorney involved in Birther issues was a Hillary Clinton DEMOCRAT!
The SOS was not a party in the case. The SOS could not bear a burden of proof. Hatfield asked Malihi to determine who therefore had the burden of proof, and cited GA precedent to say that the burden of proof should fall to Obama.
Who did Malihi say had the burden of proof, and how did he specifically respond to the precedent cited by Hatfield?
Again, you don't understand what you read IF, indeed, you actually read the Constitution. The Constitution grants to the Congress the authority to make law. That authority is not granted to ANY other branch of government. The Constitution grants to the Executive (POTUS) the authority to implement law. No other branch of government has that authority. The Constitution grants to the Judicial the authority to interpret law as it relates to the Constituion. No other branch of government has that authority.
IF the people and/or the Congress disagree with the Court's ruling, they can work through the Congress to change the law. And, IF someone disagrees with that new law and files suit that eventually ends up in the Supreme Court, THEN the Court can and will rule on the legality of the new law as it relates to the Constitution. The Congress and the SCOTUS do not work together on this. Congress made a law that the SCOTUS eventually struck down. So, Congress made another law that eventually made its way to the SCOTUS for a ruling on its adherence to the Constitution. In BOTH cases, the SCOTUS ruled on matters of law as they related to the Constitution.
RARELY has a law struck down by the SCOTUS ever been reenacted by the Congress.
With respect to Newt, he's a smart guy and I respect his knowledge but I suspect that you are reading into his opinions what you want to see. I fully agree that the courts have waaaaaaaayyyyyyy more power and authority than the Founders ever intended and that their authority needs to be scaled back. This is largely because of the judicial activism that Robert Bork testified about. Judicial activism is rampant in the court system with far too many judges flaunting their authority and issuing improper rulings.
I think that the disagreement we are having stems from the way that the system has been corrupted and perverted into the way that it currently works as opposed to what the Founders intended. The Founding Fathers did NOT intend for the system to work the way that it does but, because we, the people who own this government, have allowed the politicians and judges to pervert the system under our very noses while we slept, what we have is what we have.
Finally, I did not say that the Congress was subordinate to the Court. I said that the Congress and the Court have different responsibiliies and authority as granted to them by the Constitution.
Congress CAN tell the Courts that they are wrong, on any issue.
Congress can then tell the Courts that they have no authority or jurisdiction to reverse the opinion of Congress.
Congress can also tell the Courts that any attempt to reverse the opinion of Congress would be an impeachable offense.
Do you deny that Congress has these powers, which only require a simple majority vote?
He did not grant Hatfield his motions so it does not appear that he was convinced by his motion.
His decision clearly indicates that he felt the burden lay with the plaintiffs.
The Georgia SoS referred the case to the judge - from the rules:
“(j) “Referring Agency” means the state agency for which an administrative hearing is being held.”
Couple that with:
“(1) The agency shall bear the burden of proof in all matters except that:..”
and it is clear who had the burden of proof.
If Malihi didn’t say, then the “agency” has the burden of proof, UNLESS those other situations apply. And since the issue was whether Obama would receive the civil penalty of having his name rejected from the ballot, that would be the situation that my C&P alluded to. In which case, the burden of proof is on the person the civil penalty would fall on. IOW, Obama.
Hatfield wanted it specifically stated that the burden of proof fell on Obama, not the SOS - since the SOS wasn’t trying to prove or even claim anything. If Malihi neither denied the motion nor granted it, that could be his admission that the motion was irrelevant because the law ALREADY places the burden of proof on Obama.
The statute makes qualifying a POSITIVE requirement, not a passive requirement. The candidate SHALL be qualified - not the candidate shall be on the ballot unless disqualified. The statute itself places the burden on the candidate.
If “the agency” has any burden of proof, it is to prove that Obama satisfies the law. The agency has no probative evidence that Obama satisfies the law because Obama offered no probative evidence. If this case is between the agency and the challengers, then the agency has the burden of proving that Obama meets the statute’s requirement in order to be placed on the ballot - or to prove that he doesn’t.
Either way, the agency failed to prove anything. Obama failed to prove anything. So what we’ve got is the judge saying what Obama wants him to say, in spite of there being no probative evidence.
Which is why the decision totally stinks and breaks the rules of evidence that Malihi was required to obey - as I showed in previous posts.
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