Swensson-Powell-Farrar-Welden vs. Obama - Judge Michael Malihi's Final Order - Georgia Ballot Access Challenge - 2-3-12

8/3/2019 Swensson-Powell-Farrar-Welden vs. Obama - Judge Michael Malihi's Final Order - Georgia Ballot Access Challenge - 2

1/10

( 1 )FILEDO S A I IOFFICE OF STATE ADM INISTRATIVE HEARINGSE B 0 3 2012STATE OF GEORGIA

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

v.BARACK OBAMA,

Defendant.

Valerie Rig Levi Assistant D o c ke t N u m ber : O S A H - S E C S TA TE - CE - 1 2 1 5 1 3 6 - 6 0 - M A L I H I

Counsel for Plaintiffs: Orly TaitzCounsel for Defendant: Michael Jablonski

D A V I D P. W E L D E N ,Plaintiff, :

:v.:B A R A C K O B A M A ,:Defendant.

Do ck e t N u mb e r : O SA H -SEC ST A T E-C E-1 2 1 5 1 3 7 - 6 0 - M A LI EHCounsel for Plaintiff: Van R. IrionCounsel for Defendant: Michael Jablonski

C A R L S W E NS S O N ,Plaintiff,Docket Number: OSAH-SECSTATE-CE-

:2 1 6 2 1 8 - 6 0 - M A LEH Iv. Counsel for Plaintiff: J. Mark HatfieldBARACK OBAMA, Counsel for Defendant: Michael JablonskiDefendant.K E V I N R IC HA R D P O W E L L ,

Plaintiff,:

v.BARACK OBAMA,

D :efendant.

Do ck e t N u mb e r : O SA H -SEC ST A T E-C E-1 2 1 6 8 2 3 - 6 0 - M A L I H ICounsel for Plaintiff: J. Mark HatfieldCounsel for Defendant: Michael Jablonski


2/10

DECISION'Plaintiffs alleg e that De fendant Pre sident Barack O bama does not mee t Ge org ia's

e lig ibility require me nts for candidacy in G eor gia's 2 0 1 2 pre sidential primary e lection.Ge org ia law mandates that candidates me et constitutional and statutory re quirem ents forthe office that they seek. O .C.G.A . 2 1 -2-5(a) . Mr. O bama is a candidate for fede raloffice w ho has be e n cer tifie d by the state e xe cutive committee of a political party, andtherefore must, under Georgia Code Section 21-2-5, meet the constitutional and statutoryqualifications for holding the O ffice of the Pre sident of the U nited S tates. Id . The U nitedS tate s Constitution re quires that a Pre sident be a "natural born [c]itize n." U.S . Const. art.II, 1, cl. 5.

A s required by Ge org ia Law , S ecre tary of S tate Brian Kemp re ferr ed Plaintiffs'challenges to this Court fo r a hea r ing . O .C.G.A . 2 1 -2-5(b). A hea r ing w as he ld onJanuary 26, 2 01 2. The re cord closed on February 1 , 20 12 . Plaintiffs Farrar, Lax, Judy,Malare n, and R oth and their counsel O rly Taitz, Plaintiffs Carl Sw ensson and KevinR ichard Powe ll and the ir counsel J. Mark Hatfield, and Plaintiff David P. We lden and hiscounsel V an R. Trion, all appeared and answe re d the call of the case. Howe ve r, neithe rD efe ndant nor his counsel, Michael Jablonski, appe are d or answ er e d. O rdinarily, theCourt w ould enter a default order against a party that fails to participate in any stage of aproceeding . Ga. Comp. R . & R eg s . 61 6-1-2- .30 (1) and (5) . Nonethe less, despite the

1 This De cision has bee n consolidated to include the four challenge s to President O bama's candidacy filedby Plaintiffs D avid Farr ar, et al., David P. Welden, Carl Swensson, and Kevin Richard Powell. Section I ofthis De cision applies only to the case pre sented by M s. Taitz on beh alf of Mr . Farr ar and his co-plaintiffs,Le ah Lax, Cody Judy, Thomas Malaren, and Laurie R oth, and does not per tain, in any way, to the cases ofMr. We lden, Mr. S we nsson, and Mr. Pow ell. S ection II applies to all Plaintiffs.

2


3/10

D e fendant's failure to appear, Plaintiffs asked this Court to decide the case on the m er itsof their arguments and evidence. The Court granted Plaintiffs' request.

By deciding this matter on the m er its, the Court in no way condones the conductor legal scholarship of Defendant's attorney, Mr. Jablonski. This Decision is entirelybased on the law, as well as the evidence and legal arguments presented at the hearing.

3


4/10

I.videntiary Argum ents of Plaintiffs Farrar, et al.Plaintiffs Farrar, Lax, Judy, Malaren, and Roth contend that President BarackObama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr.Obama maintains a fraudulently obtained social security number, a Hawaiian birthcertificate that is a computer-generated forgery, and that he does not otherwise possessvalid U.S . identification papers. Fur ther , Plaintiffs submit that Mr. O bama has pre viouslyhe ld Indonesian citizenship, and he did not use h is leg al name on h is notice of candidacy,which is either Barry Soetoro or Barack Obama Soebarkah. (Pl.s' Am. Compl. 3.)

At the hearing, Plaintiffs presented the testimony of eight witnesses 2 and sevenexhibits in support of their position. (Exs. P-1 through P-7.) When considering thetestimony and exhibits, this Court applies the same rules of evidence that apply to civilnonjury cases in superior court. Ga. Comp. R. & Regs. 616-1-2-.18(1)(9). The weightto be given to any evidence shall be determined by the Court based upon its reliabilityand probative value . Ga. Comp. R . & R eg s . 61 6-1-2- .18 (10 ) .

The Court finds the te stimony of the w itnesses, as we ll as the ex hibits tende re d, tobe of little, if any, probative value, and thus wholly insufficient to support Plaintiffs'allegations. 3 Ms. Taitz attempted to solicit expert testimony from several of thewitnesses without qualifying or tender ing the witnesses as exper ts. See Stephens v. State,219 Ga. App. 881 (1996) (the unqualified testimony of the witness was not competentevidence). For example, two of Plaintiffs' witnesses testified that Mr. Obama's birth

2 O riginally, Ms. Taitz indicated to the Court that she would offer the te stimony of sev en w itnesses.Howe ver , during her closing argume nt, Ms. Taitz re quested to testify. Ms. Taitz was sworn and beg an hertestimony, but shortly ther eafter, the Court re quested that Ms. Tatiz step-down and submit any furthertestimony in w riting.3 The cre dibility of witnesse s is within the sole discretion of the trier of fact. In non-jury cases thatdiscretion lies with the judge. See Mustang Transp., Inc. v. W. W. Lowe & Sons, Inc., 123 Ga. A pp. 350,352 (1971) .

4


5/10

cer t ificate w as forg ed, but neithe r w itness was prope r ly qualified or tende red as an exper tin birth records, forged documents or document manipulation. Another witness testifiedthat she has concluded that the social security number Mr. Obama uses is fraudulent;however, her investigatory methods and her sources of information were not properlypre sented, and she w as neve r qualified or tende re d as an expe rt in social secur ity fraud, orfraud investigations in general. Accordingly, the Court cannot make an objectivethreshold determination of these witnesses' testimony without adequate knowledge oftheir qualifications. See Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 (1957) (for

the testimony of an expert witness to be received, his or her qualifications as such mustbe first proved).

None of the testifying witnesses provided persuasive testimony. Moreover, theCourt finds that none of the written submissions tendered by Plaintiffs have probativevalue. Given the unsatisfactory evidence presented by the Plaintiffs, the Court concludesthat Plaintiffs' claims are not persuasive.

5


6/10

II.pplication of the "Natural Born Citizen" RequirementPlaintiffs allege that President Barack Obama is not a natural born citizen of theUnited States and, therefore, is not eligible to run in Georgia's presidential primaryelection. As indicated supra, the United States Constitution states that "[n]o personexcept a natural born Citizen . . . shall be eligible for the Office of the President . . . 2' 4

, cl. 5.For the purpose of this section's analysis, the following facts are considered: 1)

Mr. Obama was born in the United States; 2) Mr. Obama's mother was a citizen of the

United States at the time of his birth; and 3) Mr. Obama's father was never a UnitedS tates citizen. Plaintiffs contend that, because h is father w as not a U.S . citizen at the timeof his birth, Mr . O bama is constitutionally ineligible for the O ffice of the Pre sident of theUnited States. The Court does not agree.

In 2009, the Indiana Court of Appeals ("Indiana Court") addressed facts andissues similar to those before this Court. Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct.App. 2009). In Arkeny, the plaintiffs sought to prevent certification of Mr. Obama as aneligible candidate for president because he is not a natural born citizen. Id. at 681. Theplaintiffs argued, as the Plaintiffs argue before this Court, that "there's a very cleardistinction between a 'citizen of the United States' and a 'natural born Citizen,' and thedifference involves having [two] parents of U.S. citizenship, owing no foreignallegiance." Id. at 685. The Indiana Court rejected the argument that Mr. Obama was

4 The definition of this clause has been the source of much debate. See, e.g., Gordon, Who Can BePresident of the United States: The Unresolved Enigma, 28 M d. L. Re v. 1 (1 968); Jill A . Pryor , Note, TheNatural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Yearsof Uncertainty, 97 Yale L .J. 881 (198 8); Christina S. Lohman, Presidential Eligibility: The Meaning of theNatural-Born Citizen Clause, 36 Gonz. L. Rev. 349 (2000); William T. Han, Beyond PresidentialEligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship, 58 Drake L . Re v . 457(2010) .

6


7/10

ineligible, stating that children born within the United States are natural born citizens,regardless of the citizenship of their parents. Id. at 688. This Court finds the decisionand analysis of Arkeny persuasive.

The Indiana Court began its analysis by attempting to ascertain the definition of"natural born citizen" because the Constitution does not define the term. Id. at 685-86;See Minor v. Happersett, 88 U.S. 162, 167 (1875) ("The Constitution does not, in words,say who shall be natural born citizens. Resort must be had elsewhere to ascertain that");see also United States v. Wong Kim Ark, 169 U.S. 649 (1898) (noting that the only

me ntion of the ter m "natural born citizen" in the C onstitution is in A rticle II, and the te rmis not defined in the Constitution).

The Indiana Court first explained that the U.S. Supreme Court has read theFourtee nth A me ndment and A rticle I I (natural born cit izen provision) in tandem and h eldthat "new citizens may be born or they may be created by naturalization." Id. at 685(citing Minor, 88 U.S. at 167); See U.S. Const. amend. XIV, 1. ("All persons born ornaturalized in the United States and subject to the jurisdiction thereof, are citizens of theUnited States . . . ."). In Minor, the Court observed that:

At common-law, with the nomenclature of which the framers of theConstitution w er e fam iliar, it was ne ve r doubted that all childre n born in acountry of parents who were its citizens became themselves, upon theirbirth, citizens also. These were natives, or natural-born citizens, asdistinguished from aliens or foreigners. Some authorities go further andinclude as citizens children born within the jurisdiction without referenceto the citizenship of their parents. As to this class there have been doubts,but never as to the first. For the purposes of this case it is not necessary tosolve these doubts.

Id. at 167-68. Plaintiffs ask this Court to read the Supreme Court's decision in Minor asdefining natural born citizens as only "children born in a country of parents who were its

7


8/10

citizens." 88 U.S . at 1 67. Howe ve r, the Indiana Court explains that Minor did not definethe ter m natural born citizen. In deciding w he ther a woman w as eligible to vote, theMinor Court merely concluded that children born in a country of parents who were itscitizens would qualify as natural born, and this Court agrees. The Minor Court left openthe issue of whe ther a child born w ithin the U nited S tates of alien pare nt(s) is a naturalborn citizen.

Ne xt, the Indiana Court looked to United States v. Wong Kim Ark, in which theSupreme Court analyzed the meaning of the words "citizen of the United States" in theFourtee nth A me ndment and "natural born citizen of the U nited S tates" in A rticle II todete rmine w he ther a child born in the U nited S tates to parents who, at the time of thechild's birth, we re subjects of China "become s at the time of his birth a citizen of theU nite d S tate s, by virtue of the first clause of the fourtee nth amendme nt . . ." Id. at 686(citing Wong Kim Ark, 1 69 U .S . at 653 ). The Indiana Court dete rmined that the twoprovisions "must be interpreted in the light of the common law, the principles and historyof which were familiarly known to the framers of the constitution." Id . (citing Wong KimArk, 1 69 U .S . at 654). The Indiana Court ag re e d that "[t]he inter pre tation of theconstitution of the United States is necessarily influenced by the fact that its provisionsare framed in the language of the Eng lish common law, and are to be r ead in the light ofits history." Id . (citing Wong Kim Ark, 1 69 U.S. at 655) (internal citation omitted). TheWong Kim Ark Court ex tensively e xamined the common law of Eng land in its decisionand concluded that Wong K im A rk, wh o was born in the United S tates to alien pare nts,

8


9/10

became a citizen of the U nited S tates at the time of his birth. 5 Wong Kim Ark, 169 U.S . at705 .

5 Th e Wong Kim Ark Court explained:The fundamental principle of the common law with regard to English nationality was birthwithin the alleg iance, also called "lige alty," "obedience ," "faith" or "pow er ," of the King. Theprinciple e mbraced all per sons born within the King's alleg iance and subject to his protection.S uch alleg iance and protection wer e mutual . . . and wer e not restr icted to natural-bornsubjects and naturalized subjects, or to those who had taken an oath of allegiance; but werepre dicable of aliens in amity, so long as they w er e w ithin the king dom. Childre n, born inEng land, of such aliens, w ere there fore natural-born subjects. But the ch ildren, born withinthe r ealm, of foreign ambassadors, or the children of alien e nemies, born during and w ithintheir hostile occupation of part of the King's dominions, we re not natural-born subjects,because not born within the allegiance, the obedience, or the powe r, or, as would be said atthis day, within the jurisdiction of the King.

169 U .S. at 655.It thus clearly appears that by the law of Eng land for the last thre e ce nturies, beginning be forethe settlement of this country, and continuing to the pr ese nt day, aliens, while re siding in thedominions possessed by the Crown of England, were within the allegiance, the obedience, thefaith or loyalty, the prote ction, the pow er , the jurisdiction, of the Eng lish S ove re ign; andtherefore every child born in England of alien parents was a natural-born subject, unless thechild of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy inhostile occupation of the place w her e the child was born.

Id. at 658. Further :Nothing is better se ttled at the common law than the doctrine that the childre n, eve n of aliens,born in a country, while the parents are resident there under the protection of the government,and owing a temporary alleg iance the re to, are subjects by birth.

Id. at 660 (quoting Inglis v. Trustees of Sailors' Snug Harbor, 2 8 U.S . (3 Pet .) 99, 164 (183 0) (Story, J.,concurring)). A nd:The first section of the second article of the constitution uses the language, 'a natural-borncitizen.' It thus assumes that citizenship m ay be acquired by birth. Undoubtedly, this languag eof the constitution was used in reference to that principle of public law, well understood inthis country at the time of the adoption of the constitution, which referred citizenship to theplace of birth.

Id . at 662 (quoting Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curt is , J., dissenting)).Finally:A ll persons born in the alleg iance of the king ar e natural-born subjects, and all per sons born inthe allegiance of the U nited S tates are natural-born citizens. Birth and alleg iance g o togethe r.Such is the rule of the common law, and it is the common law of this country, as well as ofEngland.

Id . at 662 -63 (quoting United States v. Rhodes, (1866) (Mr. Justice S wayne)).

9


10/10

Relying on the language of the Constitution and the historical reviews andanalyses of Minor and Wong Kim Ark, the Indiana Court concluded that

pe rsons born w ithin the border s of the U nited S tates are "natural borncitizens" for A rticle II, S e ction 1 purpose s, re gardle ss of the citizenship oftheir pare nts. Just as a per son "born w ithin the Br itish dominions [was] anatural-born British subject" at the time of the framing of the U.S.Constitution, so too we re those "born in the alleg iance of the United S tates[] natural-born citizens."

91 6 N.E.2 d at 688. The Indiana Court deter mined that a person qualifies as a natural borncitizen if he was born in the United S tates because he became a United S tates citizen atbirth. 6

For the purpose s of this analysis, this Court considere d that President BarackO bama was born in the United S tates. Ther efore , as discussed in Arkeny, he became acitizen at birth and is a natural born citize n. A ccordingly,

CONCLUSIONPre sident Barack O bama is eligible as a candidate for the pre sidential primary

election under O .C.G.A . 21 -2-5(b).

SO ORDERED, February d , 2 0 1 2 .

MICHAEL M. MALIHI, Judge

6 This Court recog nizes that the Wong Kim Ark case w as not deciding the me aning of "natural born citizen"for the purposes of determining presidential qualifications; however, this Court finds the Indiana Court'sanalysis and re liance on the se cases to be pe rsuasive.10

Documents

Swensson-Powell-Farrar-Welden vs. Obama - Judge Michael Malihi's Final Order - Georgia Ballot Access Challenge - 2-3-12