Wednesday, February 1, 2012

President Obama may be excluded from Georgia ballot

According to Congressman Tom Tancredo's website, President Obama may be excluded from the ballot in Georgia as a candidate for the election this November.  There was a lawsuit filed in Georgia against Mr. Obama in regards to his status as a "natural born citizen" and Obama's attorney, Michael Jablonski, decided not to show for the proceedings.  Mr. Jablonski declared that he will no longer participate in administrative court hearings on a challenge to Obama’s spot on Georgia’s presidential primary ballot.  The Georgia Secretary of State (Brian Kemp) responded to Obama’s attorney with the warning, “if you and your client (Obama) choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril.”
The Judge in the case has said he will decide by Feb 5 whether or not he will recommend to the Georgia Secretary of State to exclude Obama from the ballot.  The Georgia Secretary of State has said he will follow the Judge's recommendation.  This ruling itself won’t really hurt Obama’s reelection efforts because Obama lost Georgia in 2008.  Georgia has 16 electoral votes up for grabs this election cycle and those will probably go to the GOP nominee with or without this ruling.  If the “Birthers” win this ruling in Georgia, it will no doubt inspire them to try this tactic in states that Obama needs to claim the 270 Electoral College votes to win the election.  This story is still developing so stay tuned!  

Jablonski letter to Secretary of State Kemp:

Hon. Brian P. Kemp
Georgia Secretary of State
214 State Capitol
Atlanta, Georgia 30334

via email to Vincent R. Russo Jr., Esq.

Re: Georgia Presidential Preference Primary Hearings

Dear Secretary Kemp:

This is to advise you of serious problems that have developed in the conduct of the hearings pending before the Office of State Administrative Hearings. At issue in these hearings are challenges that allege that President Obama is not eligible to hold or run for re-election to his office, on the now wholly discredited theory that he does not meet the citizenship requirements. As you know, such allegations have been the subject of numerous judicial proceedings around the country, all of which have concluded that they were baseless and, in some instances – including in the State of Georgia – that those bringing the challenges have engaged in sanctionable abuse of our legal process.

Nonetheless, the Administrative Law Judge has exercised no control whatsoever over this proceeding, and it threatens to degenerate into a pure forum for political posturing to the detriment of the reputation of the State and your Office. Rather than bring this matter to a rapid conclusion, the ALJ has insisted on agreeing to a day of hearings, and on the full participation of the President in his capacity as a candidate. Only last week, he denied a Motion to Quash a subpoena he approved on the request of plaintiff’s counsel for the personal appearance of the President at the hearing, now scheduled for January 26.

For these reasons, and as discussed briefly below, you should bring an end to this baseless, costly and unproductive hearing by withdrawing the original hearing request as improvidently issued.

It is well established that there is no legitimate issue here—a conclusion validated time and again by courts around the country. The State of Hawaii produced official records documenting birth there; the President made documents available to the general public by placing them on his website. “Under the United States Constitution, a public record of a state is required to be given ‘full faith and credit’ by all other states in the country. Even if a state were to require its election officials for the first time ever to receive a ‘birth certificate’ as a requirement for a federal candidate’s ballot placement, a document certified by another state, such as a ‘short form’ birth certificate, or the certified long form, would be required to be accepted by all states under the ‘full faith and credit’ clause of the United States Constitution.” Maskell, “Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement,” Congressional Research Service (November 14, 2011), p.41.

Nonetheless, the ALJ has decided, for whatever reason, to lend assistance through his office—and by extension, yours—to the political and legally groundless tactics of the plaintiffs. One of the attorneys for the plaintiffs has downloaded form subpoenas which she tried to serve around the country. Plaintiff’s attorney sent subpoenas seeking to force attendance by an office machine salesman in Seattle; seeking to force the United States Attorney to bring an unnamed “Custodian of Records Department of Homeland Security” to attend the hearing with immunization records; and asking the same U.S. Attorney to bring the same records allegedly possessed by “Custodian of Records of U.S. Citizenship and Immigration Services.” She served subpoenas attempting to compel the production of documents and the attendance of Susan Daniels and John Daniels, both apparently out of state witnesses, regarding Social Security records. She is seeking to compel the Director of Health for the State of Hawaii to bring to Atlanta the “original typewritten 1961 birth certificate #10641 for Barack Obama, II, issued 08.08.1961 by Dr. David Sinclair…,” even though Hawaii courts had dismissed with prejudice the last attempt to force release of confidential records on November 9, 2011. Taitz v. Fuddy, CA No. 11-1-1731-08 RAN.

In Rhodes v. McDonald, 670 F. Supp. 2d 1363, 1365 (USDC MD GA, 2009), Judge Clay Land wrote this of plaintiff’s attorney:

When a lawyer files complaints and motions without a reasonable basis for believing that they are supported by existing law or a modification or extension of existing law, that lawyer abuses her privilege to practice law. When a lawyer uses the courts as a platform for political agenda disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to practice law….

As a national leader in the so-called ‘birther movement,’ Plaintiff’s counsel has attempted to use litigation to provide the ‘legal foundation’ for her political agenda. She seeks to use the Court’s power to compel discovery in her efforts force the President to produce a ‘birth certificate’ that is satisfactory to herself and her followers.” 670 F. Supp. 2d at 1366.

All issues were presented to your hearing officer—the clear-cut decision to be on the merits, and the flagrantly unethical and unprofessional conduct of counsel—and he has allowed the plaintiffs’ counsel to run amok. He has not even addressed these issues—choosing to ignore them. Perhaps he is aware that there is no credible response; perhaps he appreciates that the very demand made of his office—that it address constitutional issues—is by law not within its authority. See, for example, Flint River Mills v. Henry, 234 Ga. 385, 216 S.E.2d 895 (1975) [1]; Ga. Comp. R. & Regs. r. 616-1-2-.22(3).

The Secretary of State should withdraw the hearing request as being improvidently issued [2]. A referring agency may withdraw the request at any time. Ga. Comp. R. & Regs. r. 616-1-2-.17(1). Indeed, regardless of the collapse of proceedings before the ALJ, the original hearing request was defective as a matter of law. Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373. (“The Secretary of State of Georgia is not given any authority that is discretionary nor any that is mandatory to refuse to allow someone to be listed as a candidate for President by a political party because she believes that the candidate might not be qualified.”) Similarly, no law gives the Secretary of State authority to determine the qualifications of someone named by a political party to be on the Presidential Preference Primary ballot. Your duty is determined by the statutory requirement that the Executive Committee of a political party name presidential preference primary candidates. O.C.G.A. § 21-2-193. Consequently, the attempt to hold hearings on qualifications which you may not enforce is ultra vires.

We await your taking the requested action, and as we do so, we will, of course, suspend further participation in these proceedings, including the hearing scheduled for January 26.

Very truly yours,

Georgia State Bar Number 385850
Attorney for President Barack Obama

cc: Hon. Michael Malihi
Van Irion, Esq.
Orly Taitz, Esq.
Mark Hatfield, Esq.
Vincent R. Russo Jr., Esq.
Stefan Ritter, Esq.
Ann Brumbaugh, Esq.
Darcy Coty, Esq.
Andrew B. Flake, Esq.

[1] We recognize that where the constitutional validity of a statute is challenged before an administrative hearing officer or board, such officer or board is powerless to declare the Act unconstitutional, and resolution of the constitutional question must await judicial review on appeal. Thus the making of such constitutional challenge before the hearing officer or board appears futile at the time of its making.

[2] 616-1-2-.17 Withdrawal of Hearing Request; Settlement. Amended.
(1) A party requesting a hearing may withdraw the request for hearing at any time, in writing or otherwise, whereupon the Administrative Law Judge may enter an order of dismissal with prejudice.
(2) The parties may agree to settle the matters in dispute at any time, whereupon the Administrative Law Judge shall enter an order of dismissal with prejudice.

Authority O.C.G.A. Sec. 50-13-40.

History. Original Rule entitled “Hearings for the Real Estate Appraisers Board” adopted as ER. 616-1-2-0.2-.17. F. Mar. 23, 1995; eff. Apr. 1, 1995, as specified by the Agency. Amended: Permanent Rule entitled “Withdrawal of Request for Hearing or Settlement” adopted.
F. June 30, 1995; eff. July 20, 1995. Amended: Rule retitled “Withdrawal of Request for Hearing; Settlement”. F. Dec. 12, 2003; eff. Jan. 1, 2004. Repealed: New Rule entitled “Withdrawal of Hearing Request; Settlement” adopted. F. Nov. 15, 2010; eff. Dec. 5, 2010.



President Barack Obama’s name will remain on the Georgia primary ballot after a state law judge flatly rejected legal challenges that contend he can not be a candidate.  According to FOX NEWS 19, despite the fact that he didn't come to court, and his lawyer refused to defend the case, President Barack Obama has won a case brought by several so-called "birthers" who sought to have him removed from the Georgia ballot for re-election on grounds that he is not a natural-born citizen of the United States. STORY HERE 

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