Farrar Motion to dismiss by Obama is denied

3Jan2012 | MICHAEL M. MALIHI, Judge

[Elderberry]

ORDER ON MOTION TO DISMISS

On December 15, 2011, Defendant, President Barack Obama, moved for dismissal of Plaintiffs' challenge to his qualifications for office. The Court has jurisdiction to hear this contested case pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

For the reasons indicated below, Defendant's Motion to Dismiss is DENIED. 1

I. Discussion 1. The Georgia Election Code (the "Code") mandates that "[e]very candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought." O.C.G.A. § 21-2-5(a).

2. Both the Secretary of State and the electors of Georgia are granted the authority under the Code to challenge the qualifications of a candidate. The challenge procedures are defined in Code Section 21-2-5(b), which authorizes any elector who is eligible to vote for a candidate to challenge the qualifications of the candidate by filing a written complaint with the Secretary of State within two weeks after the deadline for qualifying. O.C.G.A. § 21-2-5(b).

3. The Georgia law governing presidential preference primaries mandates that "[o]n a date set by the Secretary of State . . . the state executive committee of each party which is to conduct a presidential preference primary shall submit to the Secretary of State a list of the names of the candidates of such party to appear on the presidential preference primary ballot." O.C.G.A. § 21- 2-193. On October 6, 2011, Secretary Kemp issued a notice to the chairman of each political

1 Because Defendant's Motion to Dismiss is denied, in the interest of efficiency, the Court finds it unnecessary to wait for the Plaintiffs' responses before denying the motion.

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  party to notify them that the deadline for submitting the list of candidate names for the 2012 presidential preference primary was November 15, 2011. On November 1, 2011, the Executive Committee of the Democratic Party submitted President Barack Obama's name as the sole candidate for the Democratic Party. To be timely, complaints challenging a presidential candidate's qualifications in the presidential preference primary had to be filed no later than November 29, 2011. Plaintiffs, as electors eligible to vote for Defendant, timely filed challenges with the Secretary of State before the deadline of November 29, 2011.

4. In the instant motion, Defendant contends that Georgia law does not give Plaintiffs authority to challenge a political party's nominee for president in a presidential preference primary because Code Section 21-2-5 does not apply to the presidential preference primary.

5. Statutory provisions must be read as they are written, and this Court finds that the cases cited by Defendant are not controlling. When the Court construes a constitutional or statutory provision, the "first step . . . is to examine the plain statutory language." Morrison v. Claborn, 294 Ga. App. 508, 512 (2008). "Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning." Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (2003) (citations and quotation marks omitted). Because there is no other "natural and reasonable construction" of the statutory language, this Court is "not authorized either to read into or to read out that which would add to or change its meaning." Blum v. Schrader, 281 Ga. 238, 240 (2006) (quotation marks omitted).

6. Code Section 21-2-5(a) states that "every candidate for federal and state office" must meet the qualifications for holding that particular office, and this Court has seen no case law limiting this provision, nor found any language that contains an exception for the office of president or stating that the provision does not apply to the presidential preference primary.

O.C.G.A. 21-2-5(a) (emphasis added). Although the word "candidate" is not explicitly defined in the Code, Section 21-2-193 states that the political party for the presidential preference Page 3 of 4

  primary "shall submit to the Secretary of State a list of the names of the candidates of such party to appear on the presidential preference primary ballot." O.C.G.A. 21-2-193 (emphasis added). Accordingly, this Court finds that Defendant is a candidate for federal office.

7. Code Sections 21-2-190 to 21-2-200 set out the procedures of the presidential preference primary and also provide no exception to the Section 21-2-5 qualification requirement. This Court finds no basis under Georgia law why the qualification requirements in Section 21-2-5 would not apply to a candidate for the office of the president in the presidential preference primary.

8. Accordingly, this Court finds that Defendant is a candidate for federal office who has been certified by the state executive committee of a political party, and therefore must, under Code Section 21-2-5, meet the constitutional and statutory qualifications for holding the office being sought.

II. Decision Based on the foregoing, the motion to dismiss is DENIED.

SO ORDERED, this the 3 rd day of January, 2012.

MICHAEL M. MALIHI, Judge

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[hoosiermama]

What do we know about the SoS of Georgia?

[bergmeid]

He’s a Republican. Not that that means a lot these days, but still.

http://en.wikipedia.org/wiki/Brian_Kemp

[Exmil_UK]

http://www.sos.georgia.gov/misc/brianbio.htm

Interesting

[bergmeid]

So they find an administrative law judge who is a democrap and pay him off....... or does it not work that way? How many administrative law judges are there in Georgia?

[bluecat6]

He was busy with his own runoff election today:

http://www.sos.ga.gov/

Bio:

http://www.sos.georgia.gov/misc/brianbio.htm

Looks like a well connected U of G Bulldog.

As I have stated numerous times. No one in official office whats to deal with this issue. And it is not because they are evil or bad or part of a conspiracy. No one wants to be the first domino.

In reading the statute the next step of material significance is the hearing with the administrative law judge. That judge then presents their findings and details and background to the SoS. The SoS then makes the call on eligibility - based on the material from the judge.

So the next domino in this chain is the ‘administrative law judge’. If their findings are completely definitive one way or the other then the SoS has an easy call. If the findings are muddled then it will be difficult on the SoS. My bet is that input to the SoS will not be 50/50. It will lay it out one way or the other.

I do not believe the authenticity of the COLB or LFBC will be investigated. At most, they may ask Hawaii to send them actual documents. If Hawaii sends real, authentic state approved documents then Georgia will likely accept them as fact. If Hawaii does not produce documents - this could get interesting. But the real test will be if the parental requirement comes into play. If the word native is used a lot then we know what the ruling will be. If the word natural is used a lot - well, it could get interesting.

And, of course, either party can appeal and it goes to a judge in Cobb County. Which both parties will do regardless of the decision.

After the SoS decision here are the items that can be the source of an appeal to Cobb County. From the statute:

“The court may affirm the decision or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the findings, inferences, conclusions, or decisions of the Secretary of State are:

(1) In violation of the Constitution or laws of this state;
(2) In excess of the statutory authority of the Secretary of State;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

So in short:
1. Administrative law judge - Facts, finding, background.
2. SoS - Decision.
3. Appellate judge - Review for significant errors by SoS in 6 categories.

Pull up a chair and get some popcorn! Should be a good show!

[hoosiermama]

ALJ in charge of discovery? Can they accept an Amichi(sp) brief?

[Godebert]

"As I have stated numerous times. No one in official office whats to deal with this issue. And it is not because they are evil or bad or part of a conspiracy. No one wants to be the first domino."

I have a feeling LTC Terrence Lakin shall eventually be recognized as a true American hero. The only officer to uphold his sworn oath to protect and defend the Constitution.

[hoosiermama]

FYI

[bluecat6]

amicus brief (i.e. friend of the court).

Not sure...probably not many of these cases in any state and certainly not too many dealing with federal candidates.

Here is your slate of possible judges:

http://www.osah.ga.gov/judges-dir.aspx

Here is an FAQ on the procedure:

http://www.osah.ga.gov/questions.html

Look at #2 and #12.

Some background:

http://www.osah.ga.gov/documents/RideTrail.pdf

[hoosiermama]

12 should be interesting.

2 will be represented by his law firm (No doubt paid by campaign finances)

[hoosiermama]

Can a GA judge request or order a sealed document open in another state (HI)?

[Spunky]

Delete the link in post #14, if need be.

17 posted on Tuesday, January 03, 2012 10:50:53 AM by maggief

[ Post Reply | Private Reply | To 16 | View Replies | Report Abuse]

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To: maggief

Thanks, we got right on it.

;-)

How come I can click on it and get a PDF file of the denial then?

[bluecat6]

Unsealing of court ordered sealed documents would not be a trivial exercise.

But here is the question at hand. If everything from Hawaii is on the up and up then nothing should be sealed.

But after 3 years of looking at this stuff that is hard to believe. The former governor referenced ‘sealed documents’. Documents get ‘sealed’ via court order, not because some bureaucrat wants them kept secret. So if there are ‘sealed documents’ in Hawaii it would tell this - that a change of legal identity took place. And if a change of legal identity took place it would through the entire ‘Dreams’ scenario out the window. But more importantly it would mean the Obama committed fraud when he claimed no other identities as an Illinois Senator. And if the identity were changed (and possibly changed back) due to adoption by a foreign national citizen - then nbC status would be shot.

But as a matter of record Georgia should ask Hawaii for the documents - directly! Hawaii law allows for documents to be sent to courts in other states. If Hawaii coughs them up - great. If they do not and deflect the request then double up on the popcorn and put in lots of butter. It will possibly mean that Hawaii knows the LFBC and COLB images released thus far are frauds. It is really that simple. Hawaii has never been the original source of either the COLB or LFBC and has never confirmed the released ones are authentic. The ‘chain of evidence’ of authenticity of either document image has been broken. So a ‘man-in-the-middle’ fraud is possible for either document image.

If the judge focuses their findings on jus sanguinis and not jus soli then Georgia may not ask for the documents at all as they would not be relevant.

[Kenny Bunk]

Now we must all be aware and beware of Team Obama settling this with yet another fake BC. Depending upon the officials involved this could be another grandstand play.

With each of the numerous Republican elected officials I have approached on eligibility, the answer always is,

"Well, he was born in Hawaii."

To achieve the desired result, which is to get this mess to the SCOTUS,the issue before the court must be "Natural Born Citizenship."

[hoosiermama]

A direct carriage of document either by of Fed Marshall or an officer of the Health Department of HI is the only was that the documentation should be allowed in court....NO ABSTRACTS....Anything else could and should be challenged. A CHAIN OF EVIDENCE MUST BE ESTABLISHED.

Yes the change of legal identity is the only legal way to seal documents...BO cannot even unseal them. But a judge can request the unsealing and distsribution of materials. It can be done either for his eyes only in a singular case or for distribution.

Yes he lied on his application to be admitted to the bar in ILL. Since he no longer has a law license, he cannot be disbarred.

OTOH There is documentation of Barry Sortoero as a citizen of Indonesia...whether it would hold up in court??? The Lolo divorce papers would be supportive. Maybe other documentation if individual will come forward with it.

[bitt]

ping to whole thread!

[null and void]

Maybe Obama will share a jail cell with Nancy Pelosi, who signed the documents that said he was the candidate, but left out the Constutional statement on his being qualified.

Her defense is that she didn’t read it before she signed it...

Not gonna fly, she signed a version that did certify under penalty of perjury that he was constitutionally qualified, had that version called back, and then signed a version with the offending paragraph removed.

[Marine_Uncle]

Holy smokes. Unless I am misreading the article, it looks like the goon from Kenya may be in for a rough ride in due time. That is. The Secretary of State and the electors of Georgia will have the right to decide given adequate proof or lack of proof by someone representing Obama as to his eligibility to run for POTUS. Sweet.

[Kenny Bunk]

But as a matter of record Georgia should ask Hawaii for the documents

Hawaii and the documentation they may offer are not germane to the central question, "Is he eligible to run under Article II?"

Sure, this aimed at Obama. But whether or not we have a Constitution is a bigger issue.

[OrioleFan]

I believe Hawaii got the Constitutionally qualified version, else the DNC out there wasn’t going to put him on the ballot (probably because they knew and needed cover).