2012-01-19 Swensson Motion for Determination Re Burden of Proof

8/3/2019 2012-01-19 Swensson Motion for Determination Re Burden of Proof

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Kcvin W estray, Le

OFFICE OF STATE ADMINISTRATIVE HEARINGSSTATE OF GEORGIA

CARL SWENSSON,Plaintiff

V.OCKET NO.: OSAH-SECSTATE-CE-1216218-60-MALIHIBARACK OBAMA,DefendantOFFICE OF STATE ADMINISTRATIVE HEARINGS

STATE OF GEORGIAKEVIN RICHARD POWELL,

PlaintiffV.OCKET NO.: OSAH-SECSTATE-CE-1216823-60-MALIHIBARACK OBAMA,

Defendant

MOTION FOR DETERMINATION OF PLACEMENT OF BURDEN OF PROOF

Now come Plaintiffs Carl Swensson and Kevin Richard Powell,by and through undersigned counsel, and respectfully move theCourt, pursuant to OSAH Rule 616-1-2-.07, for a determination bythe Court of the proper placement of the burden of proof in theabove-styled cases, and Plaintiffs show to the Court thefollowing:

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1.The above-captioned cases are actions in which Plaintiffs

are challenging the qualifications of Defendant to appear on the

voting ballot in Georgia as a candidate for the Presidency of theUnited States.

2.OSAH Rule 616-1-2-.07(1) provides that, with certain

exceptions not applicable herein, "[t]he agency shall bear theburden of proof in all matters."

3.OSAH Rule 616-1-2-.07(2) states that, "[p]rior to the

commencement of the hearing, the Administrative Law Judge maydetermine that law or justice requires a different placement ofthe burden of proof."

4.The instant actions were not initiated by the applicable

agency herein, the Office of the Secretary of State. Rather,these actions were commenced by Plaintiffs, pursuant to O.C.G.A. 21-2-5(b), "by filing a written complaint with the Secretary ofState...."

5.Upon the filing of Plaintiffs' challenges to Defendant's

qualifications, the Secretary of State was required as a matterof procedure, also pursuant to O.C.G.A. 21-2-5(b), to refer the

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challenges to the Office of State Administrative Hearings for ahearing.

6.At present, the "agency," i.e. the Office of the Secretary

of State, has made no determination of candidate qualifications;has issued no decision; and is not a party to these actions, andit would therefore be inappropriate in these actions for theagency to bear the burden of proof as initially suggested by OSAHRule 616-1-2-.07(1). The burden of proof therefore must lieeither with the named Plaintiffs (i.e., to prove the Defendantineligible) or with the named Defendant (i.e., to prove himselfeligible).

7.Article II, Section I, Clause 5 of the United States

Constitution provides, in pertinent part, that "[n]o Personexcept a natural born Citizen, or a Citizen of the United States,at the time of the Adoption of this Constitution, shall beeligible to the Office of President...."

8.O.C.G.A. 21-2-5(a) requires that "[e]very candidate for

federal...office who is certified by the state executivecommittee of a political party or who files a notice of candidacyshall meet the constitutional and statutory qualifications forholding the office being sought (emphasis supplied)."

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9.The foregoing cited authorities place the entire burden of

proof upon Defendant Obama "to affirmatively establish his

eligibility for office." See Haynes v. Wells, 273 Ga. 106, 108-109, 538 S.E. 2d 430, 433 (2000). Plaintiffs Swensson and Powellare not required, and should not be required, "to disproveanything regarding [Defendant Obama's] eligibility to run foroffice.... - Id.

10.The rules set forth in the preceding paragraph reflect the

holding of the Georgia Supreme Court in the cited action.However, Plaintiffs submit that these rules make sense in thecontext of the instant actions, where not one shred of evidenceof Defendant Obama's eligibility, as a "natural born Citizen," tohold the Office of the President of the United States is beforethis Court or has been presented to the Georgia Secretary ofState. Apparently, the sole document which initiated Defendant'sattempt to be placed on the Georgia ballot is the November 1,2011 letter from Georgia Democratic Party Chair Mike Berlon toGeorgia Secretary of State Brian P. Kemp (a copy of which letteris attached hereto as Exhibit "A"). Oddly enough, however,defense counsel seems, according to a statement he made in amotion to quash in one of the parallel cases to the instant

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cased , t o somehow be contending that the fact that DefendantObama currently occupies the presidency is, in itself, evidenceof Defendant Obama's constitutional eligibility to that office.

On the contrary, "there is [no] presumption, at least not aconclusive presumption, that a person named or appointed to anoffice...was eligible and qualified to hold the office. Suchqualification or eligibility depends upon facts which, whenchallenged and drawn in question in a proper judicial proceeding,is a judicial question to be determined by the courts." Malonev. Minchew, 170 Ga. 687, 690-691, 153 S.E. 773 (1930).

11.Additionally, Plaintiffs submit that basic fairness dictates

that the burden of proof should rest upon the individual seekingto qualify for the office being sought. Plaintiffs should not beplaced in the position of trying to 'prove a negative.' All ofthe facts and evidence that one would naturally assume would besupportive of Defendant's eligibility for office are in thepossession and control of the Defendant. Defendant should not bepermitted to 'back his way into office' by withholding testimonyand evidence which are necessary to a judicial determination ofwhether he is actually eligible to serve. Placement of the

I "The election of President Obama by the presidentialelectors, confirmed by Congress, makes the documents andtestimony sought by plaintiff irrelevant." (Defendant's "Motionto Quash Subpoenas," p. 2, Farrar v. Obama, Docket No. OSAH-SECSTATE-CE-1215136-60-MALTHI).

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burden of proof with Defendant will assure that Defendant willnecessarily put up his case for eligibility, or else be strickenfrom the Georgia ballot.

12.For purposes of judicial economy, this issue concerning

placement of the burden of proof should be decided in advance oftrial.

WHEREFORE, Plaintiffs respectfully request that the Courtenter an Order, prior to trial, determining the placement of theburden of proof in these matters, and specifically requiringDefendant Obama to affirmatively establish his eligibility foroffice.

Respectfully submitted, this 19th day of January, 2012.HATFIELD & HATFIELD, P.C.

V .'MKJ .k HatfiAtt.orGeorgia Bar No. tiffs37509201 Albany AvenueP.O. Box 1361

Waycross, Georgia 31502(912) 283-3820


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OSAH FORM 1t tachment N o. 3G E O R G I A D E M O C R A T SWINNING THE FUTURENovember 1, 2011The Honorable Brian P. KempSecretary of State214 State CapitolAtlanta, GA 30334Dear Secretary of State Kemp:Pursuant to OCGA 21-1-193, the Executive Committee of the Democratic Party of Georgia authorized thetransmittal of this letter to your office by Page K. Gleason, the Executive Director of the DemocraticParty of Georgia, at their meeting on October 20, 2011.This letter is to inform you of the candidates whose names should appear on the March 6 DemocraticPresidential Preference Primary Ballot. The Democratic Party does not require petitions, signatures, orfees from candidates seeking presidential nomination. Candidates seeking to be listed on theDemocratic Presidential Preference Primary Ballot should notify the Executive Committee in writing byOctober 31, 2011. One candidate has submitted such a letter, and his name will appear on theDemocratic Presidential Primary Ballot:Barack ObamaIf you have any questions, please contact Executive Director Page Gleason at 678-278-2012 ext. 302 orpaeePeeoreiademocrat.org .Thank you,

Mike gerlonChairDemocratic Party of Georgiaon behalf of the Executive Committee of the Democratic party of Georgia

PAID FOR BY THE DEMOCRATIC PARTY OF GEO RGIA POST OFFICE BOX 20442 ATLANTA, GA 30325MIKE BERLON,IKEMA WILLIAMS, FIRST VICECHAIR RUSSELL EDWARDS, TREASURER: R .1 HADLEY,VICE CHAIR; MIGUEL CAMACHO, VICE CHAIR; REP. PEDRO - P E T E " MARIN, VICE CHAIR LAVERNE GASKINS, SECRETARYNOT AUTHORIZED BY ANY CANDIDATE OR CANDIDATE'S COMMITTEE WWW.GEORGIADEMS.ORG 675-278-2012


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CERTIFICATE OF SERVICEI, J. Mark Hatfield, Attorney for Plaintiffs, do hereby

certify that, pursuant to the Order entered in the above-captioned matters regarding electronic service, I have this dayserved the foregoing Motion For Determination of Placementof Burden of Proof upon:

Michael Jablonskimichael. [email protected] email addressed thereto in order to insure proper delivery.

This 19th day of January, 2012.HATFIELD & HATFIELD, P.C.

J.lkark Hatf eldAtt.'ney for la' tiffsGeorgia Bar No. 337509

201 Albany AvenueP.O. Box 1361Waycross, Georgia 31502(912) 283-3820


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TE OF HAWAII CERTIFICATE OF LIVE BIRTHEPARTMENT OF HEALTH:glum 1511. 10641Child's First Name (Type or print)BARACK lb. Middle NameH U S S E I N le. Last NameOBAMA, II2.ot

Male3.his BirthSingle t:4 Twinuriplet:3 4.f Twin or Triplet,I Ss.onthayearSb.ourWas Child Bornirthlet (;) 2ndE]rdE) Doleugust,9 61_ J 7 t 2 4 P . m ,

e of Birth, City, Town or Rural Location

Honolulu6b.sland

OahuT.---K aTte orliosphal or Institution (if not in Tuaspitii or institution, give street address)6d.s Plate ofKapiolani Maternity & Gynecological Hospitalfive'esoBirth inside City or Town Cleans?judicial district( 7 1la.st---; ati Real enee of Mother: City, Town or Rural ',peados*Honolulu 7b.sland7e.Oahu County and State or Foreign CountryHonolulu, Hawaiifa,ir:et Address 6085alanianaole Highway 7t Residence Inside City or Town Limits?If ne j.dithd districtlifo 0if.other's Mailing Address 7g. Is Residence on a Farm or Plantation?Yes0ogFull Name of FatherBARACKUSSEINB A M A 9.ace of FatherAfrican10.ge of Father2 5 11.irthplace fished, Soo et Fenian Cowan): { e n y a , E a s t A f r i c a 12a.sual OccupationStudent 12b.ind of Businem or IndustryUniversity13.ull Maiden Name of MotherSTANLEYNNUNHAM 14.ace of MotherCaucasian

IS.ge of Mother'1 8

I ...rig, that the aboveinformation is true andlo the best of my knowledge.

16.irthplacestatedcorrect

W i c h i t a ,shad, Soo or ferries Counr;5117*.ype of Oeeupation Outside Home During Pregnancy

aansasone18a. _..Sorearer Other Informantaten,pip L. . . . .;5260140,44:t.. oth . 17b.ata Last Worked-2 8b.ate of Signatures., 7 _ 4 7196.ate of Signatureir 47 ertify that this childwas born alive on the date andboar stated above.20. Dom Accepted by Loud Regll j C l'''' R9 C - A 19a.ignature tendantit0.0.wf ,.idwifeOtherddde4.4-44....._21.ignature of Local Registrar22.lp,telkoteptedby Reg. G S U C S U IO P) kL42 ,-ewUt )1 9 6 128.vidence for Delayed Filing or AlterationExhibit P-5Docket # 1215137


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OFFICE OF STATE ADMINISTRATIVE HEARINGSSTATE OF GEORGIA

DAVID FARRAR,LEAH LAX,CODY JUDY,THOMAS MALAREN,LAURIE ROTH,

Plaintiffs,v.

BARACK OBAMA,Defendant.

: Docket Number: (31AII-SECSTATE-CE.,:215136-60-MALIHI:ounsel for Plaintiffs: Orly Taitzounsel for Defendant: Michael JablonskiDAVID P. WELDEN,

Plaintiff,Docket Number: OSAH-SECSTATE-CE-:215137-60-MALIHIv.BARACK OBAMA,Defendant.CARL SWENSSON,Plaintiff,v.

BARACK OBAMA,Defendant.

:ounsel for Plaintiff: Van R. IrionCounsel for Defendant: Michael Jablonski: Docket Number: OSAH-SECSTATE-CE-:216218-60-MALIHI:ounsel for Plaintiff: J. Mark HatfieldCounsel for Defendant: Michael Jablonski

KEVIN RICHARD POWELL,Plaintiff,Docket Number: OSAH-SECSTATE-CE-:216823-60-MALIHIv. Counsel for Plaintiff: J. Mark HatfieldBARACK OBAMA,ounsel for Defendant: Michael JablonskiDefendant.


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ORDERPlaintiffs, Carl Swensson and Kevin Richard Powell, have filed a motion for determination ofplacement of burden of proof. Defendant is directed to file his response by 12 Noon, Monday,January 23, 2012.

SO ORDERED, this the 19th day of January, 2012.

g d i i t . 1 4 4 b k :MICHAEL M. MALIHI, Judge

Documents

2012-01-19 Swensson Motion for Determination Re Burden of Proof