OMG! My complaint in MS was forwarded to the Supreme Court. Chief Justice appointed a Special Judge to handle my complaint. See order below. Thank God the things started to move, I don’t know, if I can withstand the stress for much longer.
So began the quote from the email sent by Orly to bob strauss, who posted her ‘news’ on CW’s blog, along with a link to her site. Until that point, I had no idea she had filed a ballot challenge in MS, let alone that it had wound its way to the Supreme Court, especially given the fact, as I already knew, MS had no candidate ballot eligibility law for the party’s Presidential preference primary. So, as I had done when bob posted her previous headlines with respect to GA – “I WON!!! I WON!!!” – I clicked on the link.
Here is the entire title of this post announcing the judge’s interlocutory or interim court order in the MS complaint, just as it appeared on her blog.
Below is the order. (Note: I embedded this document posted on Scribd by “BirtherReport.com/ObamaReleaseYourRecords.com” because as much as possible, I like to identify and (dis)credit all the co-conspirators promoting this garbage, hoping at some point citizens hold all of them liable for perpetrating this fraudulent industry which purports to be aiming at exposing, President Barack Obama is Constitutionally ineligible for the job.)
What caught my eye immediately was that this time, Orly was the named Complainant! And, it appeared she had misidentified the name of the Mississippi Democratic Party, calling it the “Democrat Party of Mississippi.” Of course, I looked that up; yes, it is the Mississippi Democratic Party. Next, having never examined her underlying case; I now looked for the reason the MS state supreme court had issued this order. I looked up the name of the judge who had signed the order – yes, he sat on the MS supreme court bench – and then, I looked up the law he had referenced as the basis for that order, Mississippi Annotated Code 23-15-961. .
Miss. Code Ann. § 23-15-961
MISSISSIPPI CODE of 1972
*** Current through the 2011 Regular Session and 1st Extraordinary Session ***
TITLE 23. ELECTIONS
CHAPTER 15. MISSISSIPPI ELECTION CODE
ARTICLE 29. ELECTION CONTESTS
D. CONTESTS OF QUALIFICATIONS OF CANDIDATES
Miss. Code Ann. § 23-15-961 (2011)
§ 23-15-961. Exclusive procedures for contesting qualifications of candidate for primary election; exceptions
(1) Any person desiring to contest the qualifications of another person as a candidate for nomination in a political party primary election shall file a petition specifically setting forth the grounds of the challenge within ten (10) days after the qualifying deadline for the office in question. Such petition shall be filed with the executive committee with whom the candidate in question qualified.
(2) Within ten (10) days of receipt of the petition described above, the appropriate executive committee shall meet and rule upon the petition. At least two (2) days before the hearing to consider the petition, the appropriate executive committee shall give notice to both the petitioner and the contested candidate of the time and place of the hearing on the petition. Each party shall be given an opportunity to be heard at such meeting and present evidence in support of his position.
(3) If the appropriate executive committee fails to rule upon the petition within the time required above, such inaction shall be interpreted as a denial of the request for relief contained in the petition.
(4) Any party aggrieved by the action or inaction of the appropriate executive committee may file a petition for judicial review to the circuit court of the county in which the executive committee whose decision is being reviewed sits. Such petition must be filed no later than fifteen (15) days after the date the petition was originally filed with the appropriate executive committee. Such person filing for judicial review shall give a cost bond in the sum of Three Hundred Dollars ($ 300.00) with two (2) or more sufficient sureties conditioned to pay all costs in case his petition be dismissed, and an additional bond may be required, by the court, if necessary, at any subsequent stage of the proceedings.
(5) Upon the filing of the petition and bond, the circuit clerk shall immediately, by registered letter or by telegraph or by telephone, or personally, notify the Chief Justice of the Supreme Court, or in his absence, or disability, some other judge of the Supreme Court, who shall forthwith designate and notify from the list provided in Section 23-15-951 a circuit judge or chancellor of a district other than that which embraces the district, subdistrict, county or any of the counties, involved in the contest or complaint, to proceed to the county in which the contest or complaint has been filed to hear and determine the contest or complaint. It shall be the official duty of the circuit judge or chancellor to proceed to the discharge of the designated duty at the earliest possible date to be fixed by the judge or chancellor and of which the contestant and contestee shall have reasonable notice. The contestant and contestee are to be served in a reasonable manner as the judge or chancellor may direct, in response to which notice the contestee shall promptly file his answer, and also his cross-complaint if he has a cross-complaint. The hearing before the circuit court shall be de novo. The matter shall be tried to the circuit judge, without a jury. After hearing the evidence, the circuit judge shall determine whether the candidate whose qualifications have been challenged is legally qualified to have his name placed upon the ballot in question. The circuit judge may, upon disqualification of any such candidate, order that such candidate shall bear the court costs of the proceedings.
(6) Within three (3) days after judgment is rendered by the circuit court, the contestant or contestee, or both, may file an appeal in the Supreme Court upon giving a cost bond in the sum of Three Hundred Dollars ($ 300.00), together with a bill of exceptions which shall state the point or points of law at issue with a sufficient synopsis of the facts to fully disclose the bearing and relevancy of such points of law. The bill of exceptions shall be signed by the trial judge, or in case of his absence, refusal or disability, by two (2) disinterested attorneys, as is provided by law in other cases of bills of exception. The filing of such appeals shall automatically suspend the decision of the circuit court and the appropriate executive committee is entitled to proceed based upon their decision unless and until the Supreme Court, in its discretion, stays further proceedings in the matter. The appeal shall be immediately docketed in the Supreme Court and referred to the court en banc upon briefs without oral argument unless the court shall call for oral argument, and shall be decided at the earliest possible date, as a preference case over all others. The Supreme Court shall have the authority to grant such relief as is appropriate under the circumstances.
(7) The procedure set forth above shall be the sole and only manner in which the qualifications of a candidate seeking public office as a party nominee may be challenged prior to the time of his nomination or election. After a party nominee has been elected to public office, the election may be challenged as otherwise provided by law. After a party nominee assumes an elective office, his qualifications to hold that office may be contested as otherwise provided by law.
HISTORY: SOURCES: Derived from 1942 Code § 3151 [Codes, Hemingway's 1917, § 6431; 1930, § 5904; Laws, 1916, ch. 161; repealed by Laws, 1970, ch. 506, § 33 and 1986, ch. 495, § 346]; en, Laws, 1988, ch. 577, § 1; Laws, 1990, ch. 307, § 1; Laws, 1999, ch. 301, § 14, eff from and after January 15, 1999 (the date the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section.)
Okay, this says, “any person desiring to contest the qualifications of another person as a candidate for nomination in a political party primary election shall file a petition contesting eligibility…” This means, Orly is a “person” notwithstanding she doesn’t live or vote in MS. And it says, ‘If the state party executive board has thus far ignored your request for relief; then, file a petition with the MS Circuit Court, which will petition the Supreme Court to appoint a special judge in the circuit court, to hear your plea.’ Sure enough, I looked up R. Kenneth Coleman, the judge named to hear the case. Who is Mr. Coleman? A retired Circuit Court judge.
There you have it. Perhaps in making her hyperbolic announcement; Orly did not intend to mislead her captive readers, again, into believing she had brilliantly figured out how to pierce the judicial conspiracy which usually sabotaged her sound legal practice. Rather, she might just have been thinking, ‘OMG! I followed the law and, by following the law, I achieved the exact result spelled out in law!’
Only, of course, unbeknownst to the MS supreme court; she was still using the wrong law.
That same paragraph allowing Orly to name herself a petitioner; also clearly states, this law only applies to a contest of a candidate who is nominated via a primary election. For example, the candidates for, say, U.S. Senator from the R party who want their names to appear on the general election ballot; are nominated for that role in the party’s primary contest. Party nominees for President are not chosen in primary elections but at Presidential nominating conventions. No; only delegates to that convention are chosen in the primary.
(The rest of Orly’s underlying complaint repeats the same tripe knocked out of legal forum after legal forum, both judicial and administrative, which recognizes it as such.)
If you are one of those people who ‘come hell or high water’ still ‘credit the ‘legal’ work of Orly Taitz, which work appears to be loosely focused on the issue of President Barack Obama’s Constitutional eligibility for office; then, I have to say, you are not one of those citizens to whom my work is addressed. Because at this point, if you still don’t understand what she is doing wrong then, you will never understand what I am doing right. Rest assured, while you are praying for the success of your personal savor in this endeavor, literally; and thereby are avoiding your civic responsibility to learn how our political system works and, to fix it, where it does not; I plow on with the heavy lifting, on your behalf.
A frantic fundraising effort launched by several groups evidently acting in concert with each other, has infected the blogosphere, proclaiming in hyperbolic headlines, in red, the magic key has been found to unseating President Obama from both the CA and FL ballots. And, with the sum certain contribution of $25,000 to the joint “legal defense fund” set up by the several ad sponsors; a ballot challenge can be initiated which, at long last, will succeed. (Why $25,000?) But note, this $25,000 “must be raised in the next 96 hours.” Because, according to them, that’s the deadline for these ballot challenges in these 2 states. (Does this mean the ads will come down in 5 days? Will they be removed sooner, if $25,000 is donated before that time?)
THIS IS A SCAM.
No ballot challenges championed by these groups and targeting CA and FL has any chance to succeed inasmuch as the citizens of CA and FL have enacted no laws that require the candidate whose name appears on the ballot to be eligible for the job. Further, in those states with such candidate eligibility laws, ballot challenges may be filed for the next several months, until some time after the DNC Services Corporation holds its Presidential nominating convention in Charlotte, NC, the first week in September. http://www.demconvention.com/
You are as competent to file a valid ballot challenge in your state as anyone else seeking to rip you off. And you can do this at no charge. If you need help, as always, just ask. I have been here all along answering your questions, again, at no charge. Just remember, even if your state requires candidates whose names appear on the ballot must be qualified for the job and allows ballot challenges; no ballot challenge can succeed which requires the Complainant to prove, Respondent (President Obama) is not qualified for the job. However, in these states, ballot challenges can succeed where the burden can be shifted to Respondent to prove he is qualified. In addition, a challenge can also succeed where the named Respondent is the member of the state or national political party who swore the candidate was qualified to get on the ballot, whether the burden is on you to establish, this person cannot have verified such eligibility; or on Respondent to prove eligibility verification.
As I have been saying now, for years; if you don’t know your government as well as those who would use superior knowledge of government to steal your power; then, these people will continue to steal your power.
I will make this brief, because ever since ALJ Malahi issued the ruling adverse to Complainants at the administrative hearing on the ballot challenge in GA; I have been swamped by disillusioned ‘Minor v. Happersett‘ ex pats now ‘willing’ for the first time to try to shift the burden of proof (and production) as to whether President Obama is a NBC, onto those people who swore he was, the seminal point in the eligibility ‘cures’ I first proposed more than 3 years ago now, before the name Barack Obama was printed on state general election ballots.
(Note to those ‘birthers’ rendered depressed by Malihi’s findings (after raised artificially high by Orly’s ‘false flag,’ ‘I won!!! I won!!!’): just because an ALJ in GA says, MvH’s mention of the phrase NBC doesn’t mean what Leo Donofrio says it means; doesn’t mean, it doesn’t mean what he says it means. Or that Leo generally doesn’t know what he is talking about. Of course, as I wrote in jbjd’s FRENEMIES LIST, MvH’s use of the phrase NBC doesn’t mean what Leo says it means; and Leo doesn’t know what he is talking about. (I wrote this article before ALJ Malihi decimated Complainant’s reliance on MvH; although I believe he overstepped his lawful authority by ‘ruling’ on the meaning of NBC as that term appears in the U.S. Constitution; and by citing as precedent for a decision in a GA (11th circuit) administrative hearing, a decision by an IN (7th circuit) state appellate court, worse, in a state not even in the same (federal) circuit.) http://www.uscourts.gov/court_locator.aspx
At the risk of exposing myself as the only birther in the room able to view the recent events in GA from the ‘glass half full perspective’; I want to point out, in fact, a lot of good news came out of this fiasco. For example, counting down in no particular order of import:
5. Citizens of GA made a modest effort to take control of their state ballots using their state laws. High 5! (Now, if they would only have the self-confidence to do so on their own, that is, without inviting in all of these outside agitators! And speaking of outside agitators, it seems completely incongruous to me that the same people who eschew creeping federalism would invite into a ‘local’ state election law scrimmage; coaches and fans from across the country with the hope that by doing so, they somehow tilt in their favor the decision of the local referee!)
4. By participating at any stage in these ballot challenge proceedings, from formulating the legal cause of action setting off the event as well as the legal theory underpinning the charges; to drafting the documents; to representing the parties, to promoting and providing coverage of the spectacle, which culminated in a live broadcast of the evidentiary hearing; those involved afforded people across the country the opportunity to see for themselves that the money they had been donating to such ’causes’ was being frittered away by a cast of characters with no business near a hearing room, let alone a courtroom. (Maybe now they will stop funding this litigious juggernaut. NOTE TO THOSE WHO STILL FAIL TO ACCEPT, THESE PEOPLE HAVE NO IDEA WHAT THEY ARE DOING: art2superpac, the same-old-limited-thinkers-in-the-birther-game-disguised-as-the-new-kids-on-the-block; are now soliciting funds to mount a legal challenge to ALJ Malihi’s ruling. Without attacking the credibility of this ‘configuration’ of the familiar cast of birther characters; let me just assure you, a challenge of this decision has even less chance of success than the original action.)
And now – I told you, I am in a hurry – the best news from GA has nothing to do with anything said or done by either Complainants or ALJ Malihi. Can you guess what that is? (HINT: what did I say was the best news coming out of the equally legally infirm Hollister case, from January 2009?)
1. Attorney Jablonski, by submitting a Motion to Dismiss in which he argued the inviolate right of the political parties to choose their candidates for the state election ballot; as opposed to the party’s right to have the name of its chosen candidate printed on that same ballot; confirmed that the way to keep Constitutionally ineligible candidates out of the WH was to keep their names off the state ballot.
Because political parties don’t have a right to put the names of ineligible candidates on the ballot in states that limit ballot inclusion to only those candidates qualified for the job.
Some of you have reported, state officials respond to your complaints by insisting they have no right to tell the parties which candidates they may choose. You have indicated, they appear to be trying to fob you off. I have encouraged you not to argue but, instead, to respond as if they are sincerely misreading your intent. Concede the obvious. ‘Of course, state officials have no right to tell the parties which candidates they may run for office! It would be silly to think otherwise. That’s why I am not complaining they picked an ineligible candidate – they can pick anyone they want; I couldn’t care less – and I am not asking you to countermand their choice. But I do care about my state laws; and in this state, we don’t print the names of ineligible candidates on the ballot. So, I just want to make sure my state officials aren’t printing the names of those ineligible candidates on my ballot.’
If your state already has a candidate ballot eligibility law; petition the SoS to promulgate emergency rules to carry out the intention of the legislation. There is no legitimate reason these cannot be in place by the time these same state officials receive the DNC Service Corporation’s Certification of Barack Obama’s 2012 nomination.
Finally, let me remind you, by writing smart candidate eligibility laws, you will not only guarantee that only the names of eligible candidates will appear on the ballot; but you will also lead the way to reach the federal appellate court with a case on point so as to obtain a legally binding definition of NBC. That is, the parties will, undoubtedly, protest these laws. (‘It’s unConstitutional for you to define NBC!’) And, of course, the state’s reply? ‘We are not defining NBC, as that term is used in Article 2, section 1 of the U.S. Constitution! That would be illegal! We are only defining, the names of which candidates we will print on our state ballots.’
For the first time in ages, I got sick. And, for the first time in longer than that, I was too sick to go to work. In fact, I was so sick I didn’t even take advantage of being home; to work on my blog. But that was before I decided to put aside the music playlist I was compiling to peruse the blogosphere to sample materials related to these nationwide ballot challenges. Now, I am so angry that, I am actually angrier than I am sick. Fingers crossed, I will feel better if I write.
I have decided to compile a frenemies list from among those on-line characters spewing their interminable fixes to the glitches implicated either directly or tangentially in undermining our electoral system. The bizarre ‘cures’ championed, accepted by too many unwitting citizens as true, are doing more damage to our political system than was already accomplished in the past by sheer apathy. Because those of us who know better and who truly want our government to work as we presume the Founders intended; and who have been exercising our considerable energies (and finite monetary resources) to educating those of our fellow citizens without access to our information or facts or powers of analysis, often with only psychic remuneration; now are additionally compelled to expend our finite resources de-programming those same citizens who have been indoctrinated with this poisonous tripe.
Here’s how Urban Dictionary defines the word “frenemy“:
An enemy disguised as a friend.The type of “friend” whose words or actions bring you down (whether you realize it as intentional). The type of friend you ought to cut off but don’t cuz…he’s nice… good…you’ve had good times with him. He’s good people you can count on to bring you down again sometime in the near future.The friend you may or may not have cornered about his quicksand-like ways and keep around rationalizing “its in the past”…. The person who will continue to bring you down until you demand better for yourself.
So, who has aroused my ire to the point of becoming the first frenemy on my brand new list, the person who whether intentionally or through a personal character flaw is leading you astray under the guise of helping you to find your way?
Leo Donofrio, Attorney at Law.
And what precisely after all of this time has put me into a ‘I’ve-had-it-up-to-here’ stance with respect to Mr. Donofrio’s seemingly endless deluge of fecal matter-cum-legal critique? That *!*!*!* 200+-page amicus brief he assembled and is submitting to every ballot challenge forum he can find, from the GA OSAH hearing to the IL election commission.
(Note: For the purpose of this article, I am intentionally omitting any discussion as to the propriety of submitting such a brief in the first place.)
At first, I only intended to dismiss the brief as irrelevant, by specifically pointing to Leo’s reliably faulty analyses of so many other issues in the past few years. (Note: I am not charging here that everything Leo writes is legally unsound, but only that assuming it is unsound is safer than a detrimental reliance on its validity.) For example, more than 3 years ago, I drafted those military complaints after seeing those many failed attempts by Plaintiffs to address the issue of Presidential eligibility through the federal courts, whose cases were tossed out on procedural grounds. Looking for a way to get around the ‘standing’ problem they encountered, I found the the Federal Declaratory Judgment Act, which led to the idea that people seeking redress in federal court could ask for a Declaratory Judgment, using state National Guard Plaintiffs subject to federal recall. Naturally, when drafting the military complaint, I cited to the applicable federal law. Yet, Leo criticized my proposal as un-Constitutional, absurdly arguing federal courts could not issue declaratory judgments! Now, it’s true, the Constitution explicitly says, the authority of the federal court is restricted to deciding “cases” and controversies.” http://www.law.cornell.edu/wex/controversy But, of course, the Federal Declaratory Judgment Act provides a mechanism for obtaining the court’s opinion within the framework of this restriction. (His rationale in this instance represented a common flaw that appears in Leo’s reasoning: he looks narrowly to the ‘plain language’ in a passage without considering its practical meaning in the larger legal and political context.) (FYI, here is the Federal Rule of Civil Procedure on Declaratory Judgments. http://www.law.cornell.edu/rules/frcp/rule_57 For a comprehensive explanation as to when the federal court may issue declaratory judgments, see http://www.law.cornell.edu/anncon/html/art3frag21_user.html)
Then, there was the time he argued that he had found a federal law allowing a member of the security division of the Executive branch to withhold ‘secrets’ from the President, the boss of the Executive, based on a determination, this is in the public interest. I spent hours explaining, especially on CW’s blog, this is not what the law means. For definitions of the terms contained in this section of the law, you have to look at another section of the law. And those definitions spelled out, the law Leo claimed applied to the President applied only to contract employees. (Or you can use your common sense!) Indeed, I intended to make my case that any ‘legal’ work produced by Mr. Donofrio is irrelevant; by searching through years of internet postings, in which I refuted such tripe; and even began such a search. But I found the task overwhelming. (Readers of the CW blog familiar with this exchange might look it up and send here; I will post.)
I also figured Leo likely had only reached the 200-page milestone by incorporating into this amicus brief much of that same flawed ‘legal’ reasoning I had already de-bunked over the years. That’s when I decided to skim the brief. And, sure enough, this document contains many of those ‘legal’ arguments conjured up only in Leo’s imagination, which arguments even if they could be said to validate his personal private machinations; nonetheless still detract from the practical approach required to engage an active citizenry in shoring up our electoral system so as to ensure, only the candidate who is a NBC, can be elected for the job.
PLEASE, LEST YOU ARE TEMPTED AT THE OUTSET OF MY ANALYSIS TO COMPARE, CONTRAST, OR CHALLENGE RESPECTIVE CREDENTIALS WHICH HAVE BEEN MADE PUBLIC BY US ON-LINE PUNDITS; STOP! I have asked readers to consider our respective legitimacy only by examining on-line track records based on criteria that include reliability of analysis, and accurate reporting of facts, a feat which can be accomplished even absent full access to the particulars in his or her CV. (Let’s start with this fact. The legal and political analyses of issues related to presidential eligibility which I began in 2008 in response to voter concerns, led me to recommend at that time, given existing state laws, the mechanism for keeping Barack Obama out of the WH was to keep his name off the state election ballot. Leo only accessed this mechanism for redress of the eligibility dilemma, 3 1/2 years after the fact.) CHALLENGING BO’S ELIGIBILITY TO GET ONTO THE GENERAL ELECTION BALLOT AS THE DEMOCRATIC CANDIDATE FOR POTUS)
Leo begins the amicus brief with his assumptions of these facts: 1) Barack Obama was born in HI; and 2) his father was a British subject at the time of his birth. Then, based on these assumptions, he argues, Barack Obama is not a NBC because Minor v. Happersett defines only those citizens born in the U.S. of 2 U.S. citizen parents are NBCs.
No, it does not. And I have explained several times, it does not. For example, see SENSE and non-SENSE, relying on such sources such as the Legal Information Institute of Cornell University School of Law. Nor does Minor in any way limit the definition of NBC to only those people born in the U.S. of 2 U.S. citizen parents.
The decision from the lower courts which was appealed to the Supreme Court in Minor was quite narrow:
The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.
Thus, the main focus of this case was not on citizenship; in fact, everyone involved in the case already agreed, based on the wording of the 14th Amendment, she was a citizen. Rather, the question presented to the high court was whether privileges and immunities connected to citizenship included the right to vote. The lower courts had ruled, it did not. Minor disagreed; that’s why she appealed. But before the high court could issue what would then become a legal “fact” with respect to voting as a privilege and immunity of citizenship; it first had to determine whether those “persons” now classified in the 14th Amendment as (having always been) citizens with a right to privileges and immunities, (historically) included women. If yes; the court would then determine whether voting had historically been treated as a privilege and immunity of citizenship, so as to determine whether it would be a privilege and immunity of citizenship, now. For this analysis, the court looked back at the history of women-qua-persons-who-would-have-been-considered-citizens pre-14th Amendment. Determining Minor was always considered a citizen (and thus, would have enjoyed the privileges and immunities of citizenship) even before the formalization of that designation in the 14th Amendment, was easy. As the court pointed out, given her specific set of circumstances – she was a woman born in the U.S. of 2 U.S. citizen parents – the literature was consistent. Thus, at a minimum, she was a citizen entitled to the same privileges and immunities of all citizens. Then, the court ‘just’ had to consider whether voting was one of these privileges and immunities which had historically been attached to such citizenship.
But you didn’t stop there.
Referring again to the Minor court, you wrote, “Their holding was that natural-born citizens were citizens at birth who do not require the 14th Amendment to establish their membership in the nation.” No, it was not; the holding in Minor had absolutely nothing to do with citizenship. Remember, the lower courts all agreed, Minor was both a citizen of MO and of the U.S.; and that voting wasn’t a privilege and immunity with respect to such citizenship. Minor appealed to the high court on the narrow grounds, she believed voting was a privilege and immunity tied to her citizenship under the 14th Amendment.
Here’s the holding in Minor, again, closely correlated to the narrow question asked:
Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we AFFIRM THE JUDGMENT.
As for your statement that the court [said] Minor was a citizen before the 14th Amendment, well, of course, it could not say otherwise, since everyone who was a U.S. citizen before the 14th Amendment was still a citizen after its passage; and no one who wasn’t already a U.S. citizen was made a citizen by this Amendment. The court actually said,
There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside.” But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an [p166] association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association.
Read the legislative history; the 14th Amendment did not confer a new status of citizenship on anyone not already a citizen before its passage, whether native, natural born, or naturalized. It merely had to find that http://www.law.cornell.edu/anncon/html/amdt14a_user.html#amdt14a_hd1
And then, you really went off the deep end. “The Court determined it was necessary to define the class of natural-born citizens, and the definition remains current legal precedent.”
Leo, for goodness sake, get a grip. The court explicitly only set out to confirm that the word “citizen” appearing in the 14th Amendment also meant women who ‘belonged’ to this country before the 14th Amendment officially codified they were citizens. Because once it confirmed that women had always been considered ‘citizens,’ from the founding of this country and, therefore, that all of the privileges and immunities attached to such citizenship, beginning at that time, should apply now under the 14th Amendment; it could then figure out whether voting had been treated as a privilege or immunity of that citizenship. It made no difference to the analysis rendered by the court whether Minor could be said to be a native, natural born, or naturalized citizen but only whether she could be said to have been a citizen even before that word was codified in the 14th Amendment; and only because the rights enumerated in the 14th Amendment were limited to citizens. Yes, by reasoning that Minor was a citizen before the 14th Amendment the court also confirmed, the amendment did not confer new citizenship status or rights but merely ‘codified’ s status which already existed with respect to Minor. However, it did not, as you would suggest, confirm, in dicta, that the only “citizens” who were citizens before the 14th Amendment were NBCs; rather, it only confirmed that, at least, NBCs (like Minor) were citizens before the 14th Amendment.
Thus, consistent with the lower courts, the Supreme Court agreed, Minor was a citizen according to the language in the 14th Amendment. Then, examining the implications of citizenship before the 14th Amendment, the court found, in fact, Minor rightly could be considered a citizen before the 14th Amendment. But, alas, having examined the historical privileges and immunities ancillary to citizenship before the 14th Amendment; it also agreed, voting appears not to have been one of those privileges and immunities of citizenship. Thus, the court did not have to enforce a right to vote in MO. (Interestingly, the court virtually invited the electorate to cure this mistake.)
We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power, to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman’s need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we find it is within the power of a State to withhold.
In sum, with respect to the 14th Amendment and citizenship, NO U.S. CITIZENS, REGARDLESS OF WHETHER THEY SATISFIED THE CITIZENSHIP REQUIREMENTS IN THEIR INDIVIDUAL STATES OR THE DISTRICT OF COLUMBIA, NEEDED THE 14TH AMENDMENT TO ESTABLISH THEIR U.S. CITIZENSHIP. BOTH THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE BORN HERE OF 2-CITIZEN PARENTS; AND THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE BORN HERE OF NON-CITIZEN PARENTS; AND THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE NATURALIZED HERE,WERE ALREADY CITIZENS OF THE NATION BEFORE THE 14TH AMENDMENT, EVEN IF THESE SAME U.S. CITIZENS FAILED TO QUALIFY AS CITIZENS OF INDIVIDUAL STATES UNDER THE LAWS OF THOSE INDIVIDUAL STATES OR THE DISTRICT OF COLUMBIA. THUS, ALL OF THESE CITIZENS WHO WERE ALREADY CITIZENS OF THE NATION BEFORE THE 14TH AMENDMENT, WERE MENTIONED IN THE 14TH AMENDMENT ONLY FOR THIS NARROW PURPOSE: TO MAKE SURE THAT EVERYONE NOW KNEW, BEING CITIZENS MEANS, BEING ENTITLED TO THE SAME DUE PROCESS, EQUAL PROTECTION, AND PRIVILEGES AND IMMUNITIES AS ALL OTHER CITIZENS FROM NOW ON.
Got that now? And the only reason the court even reached the analysis of Minor’s citizenship was so as to confirm the word “citizen” and “person” as used in the new 14th Amendment necessarily meant even before the 14th Amendment, women who were similarly situated, that is, women born here of 2 citizen parents, but only because Minor was a woman born here of 2 citizen parents. Once it determined the threshold issue, that is, the new Amendment did, indeed, apply to the woman named in the present case; it stopped the ‘citizen’ aspect of its analysis and reached the voting qua “privileges and immunities” of citizenship core of the case. The Minor court only ruled, for the first time, under this new right vested in citizens by the 14th Amendment, voting cannot be said to be a “privilege or immunity.” It did not rule that only citizens born here of 2 citizen parents are NBCs.
Then, Leo contradicted himself.
The Minor Court’s construction of the natural-born citizen clause was the independent ground by which the Court avoided construing the 14th Amendment’s citizenship clause.Therefore, such construction is precedent, not dicta, despite Presidential eligibility not being an issue in that case. The Court determined it was necessary to define the class of natural-born citizens, and the definition remains current legal precedent.
As I have stated, the Minor court did, in fact, undertake a legal and historical analysis which, as a threshold issue, determined that, as the word “citizen” was used in the new 14th Amendment; Minor was a citizen even before the 14th Amendment. Thus, having considered the issue of Minor’s pre-14th Amendment citizenship (status) in order to “construe” that the word “citizen” in the 14th Amendment means her; the court cannot be said to be simultaneously “avoiding construing the 14th Amendment’s citizenship clause.” It did construe the 14th Amendment’s guarantee to equal privileges and immunities of all citizens, to mean all “persons” who have ‘belonged’ to this country even before the 14th Amendment, including women. At this same time, it did avoid an exhaustive exploration of all of the possible iterations of ‘women belonging to a country’ which also might rightly have triggered the designation “citizen” that appears in the 14th Amendment and, thereby implicated the “privileges and immunities” clause. And it avoided an exhaustive consideration of these ancillary issues because in the present case, it did not have to reach these issues in order to render its ruling on the case before the court.
Finally, Leo again raises the specter of Vattel. For goodness sake, give up that ghost! DEFINITION on DEMAND
The party in Georgia is over. And now, having been asked several times both here and on other blogs, what I predict will be the outcome of Thursday’s OSAH hearing in Georgia before Administrative Law Judge Malihi and, further, how Secretary Kemp will proceed in light of the ALJ’s determination; I will tell you what I think.
However, I am not privy to the record in this case and so, I am basing any speculation as to the posture of this case; on publicly available documentation. And I have no contact with anyone else who has privy to the record in this case (although this probably makes no difference as to the caliber of my prediction).
(Having access to the people directly involved would not mean that I would obtain reliable information from them, a fact made unambiguously clear when several people directly involved with the case instigated a massive public campaign of misinformation with a self-serving pronouncement that, the judge in a court of law had ordered President Obama to appear, when he had only refused to grant Respondent’s Motion to Quash Petitioner’s Subpoena. Yes, I agree the press can be blamed for their role in disseminating this propaganda by failing to investigate these claims before streamiing them into syndication; but in my opinion, this makes the attorneys involved doubly culpable for ‘blowing’ this incredible opportunity thereby provided, to educate people, instead, converting it into their personal platform to spread paranoid, error laden, hyperbolic rants.)
Finally, of course, is the fact that, notwithstanding all other considerations, when it comes to predicting a decision by any ruling authority; in fact, your guess is as good as mine.
RUMOR ALERT: Some people have insisted that before the hearing, the lawyers present met with the ALJ, who offered to “Default” Obama for not showing up. At that point, any one of the Petitioners – not just Farrar, who had issued a subpoena for him to appear so as to give “sworn” testimony – could have made a request to the ALJ, in the form of a motion, as prescribed by Rule 11; to default Obama. Or, the ALJ could default Respondent, sua sponte, that is, on its own.
But let’s say, an ordinary citizen files a complaint with the SoS that ends up in the OSAH and the Respondent bails the fact-finding hearing. S/he is likely to look up, IN ADVANCE, how this conduct would impact the proceedings.
Starting from the OSAH home page, I first found the hearing calendar and, from there, a link to Frequently Asked Questions (by parties to these proceedings).
In particular, consider that these guidelines indicate, if the Complainant is late to the hearing; the case “can be” dismissed; and if the Respondent doesn’t appear; the case “can be” decided without his input. In other words, where the burden is on Petitioner; showing up late could mean, the case was dismissed before you arrived. (More on “burden” soon.)
I, of course, looked up the section of the Administrative Procedure rule regarding default, which, again, are accessed from the OSAH home page. But before I post this, understand the meaning of the word “party” as used in the statute and corresponding rules. (Note: the statute creating the OSAH is written by the legislature, and signed into law by the governor. A provision of that law tells the head of OSAH to promulgate rules and regulations necessary for that office to carry out its legal mandate, as spelled out in the statute.)
O.C.G.A. § 50-13-2
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50. STATE GOVERNMENT
CHAPTER 13. ADMINISTRATIVE PROCEDURE
ARTICLE 1. GENERAL PROVISIONS
O.C.G.A. § 50-13-2 (2011)
§ 50-13-2. Definitions
As used in this chapter, the term:
…
(2) ”Contested case” means a proceeding, including, but not restricted to, rate making, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.
…
(4) ”Party” means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party.
(5) ”Person” means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.
(5.1) ”Record” means information created, transmitted, received, or stored either in human perceivable form or in a form that is retrievable in human perceivable form.
(6) ”Rule” means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency. …
Now, here is the Administrative rule on Default. (Again, I reached these rules through the OSAH home page.) All emphasis is mine.
RULES
OF
OFFICE OF STATE ADMINISTRATIVE HEARINGS
CHAPTER 616-1-2
ADMINISTRATIVE RULES OF PROCEDURE
616-1-2-.30 Default. Amended.
(1) A default order may be entered against a party that fails to participate in any stage of aproceeding, a party that fails to file any required pleading, or a party that fails to comply with anorder issued by the Administrative Law Judge. Any default order shall specify the grounds for the order.
(2) Any default order may provide for a default as to all issues, a default as to specific issues,or other limitations, including limitations on the presentation of evidence and on the defaultingparty’s continued participation in the proceeding. After issuing a default order, theAdministrative Law Judge shall proceed as necessary to resolve the case without theparticipation of the defaulting party, or with such limited participation as the Administrative LawJudge deems appropriate, and shall determine all issues in the proceeding, including thoseaffecting the party in default.
(3) Within ten (10) days of the entry of a default order, the party against whom the default order was issued may file a written motion requesting that the order be vacated or modified, and stating the grounds for the motion.
(4) The Administrative Law Judge may decline to enter a default or may open a default previously entered if the party’s failure was the result of providential cause or excusable neglect, or if the Administrative Law Judge determines from all of the facts that a proper case has been made to deny or open the default.
(5) If a party fails to attend an evidentiary hearing after having been given written notice, theAdministrative Law Judge may proceed with the hearing in the absence of the party unless theabsent party is the party who requested the hearing, in which case the Administrative Law Judgemay dismiss the action. Failure of a party to appear at the time set for hearing shall constitute afailure to appear, unless excused for good cause.
Respondent’s absence from this hearing despite an in effect subpoena to appear could have triggered the sanction of Default, but only with respect to Respondent. This would mean, the record would have been foreclosed as to him, absent a successful appeal of the Default Order. And all of Petitoners’ evidence would have been submitted into the record without objection from the other side.
(Or, in the alternative, Petitioners could have sought an Order to Appear. We already know that only the Superior Court can issue such an Order, on Motion of Plaintiff (who in the OSAH is the Petitioner). Petitioner’s/Plaintiff’s Motion to the Superior Court can be accompanied by the ALJ’s certification as to the facts which led to this point.)
616-1-2-.22 Hearing Procedure. Amended.
…
(5) Upon application by a party, the Administrative Law Judge shall certify the facts to the
superior court of the county in which a party, agent, or employee of a party:
(a) disobeys or resists any lawful order or process;
(b) neglects to produce, after having been ordered to do so, any pertinent book, paper, or
document;
(c) refuses to appear after having been subpoenaed;
(d) upon appearing, refuses to take the oath or affirmation as a witness;
(e) after taking the oath or affirmation, refuses to testify; or
(f) disobeys any other order issued by an Administrative Law Judge
for a determination of the appropriate action, including a finding of contempt.
Rumor is, ALJ Malihi asked whether Petitioners wanted him to enter such Default; but, reportedly, they said, ‘No.’
Supposedly, although they have entered this same ‘evidence’ into dozens of other records, they did not want to waste this opportunity to submit testimonial evidence into this record, providing ALJ Malihi with a first-hand opportunity to gauge the credibility of their witnesses, under some mistaken belief, submitting this evidence into the record of this administrative hearing without objection from Respondent, automatically validated their submissions. Then, if they won, they could file yet another suit in a real judicial court based on ‘evidence’ certified by the OSAH (but which was outside of the scope of that forum’s expertise or authority) President Obama is Constitutionally ineligible for the job.
616-1-2-.22 Hearing Procedure. Amended.
(1) The Administrative Law Judge shall conduct a fair and impartial hearing, take action to
avoid unnecessary delay in the disposition of the proceedings, and maintain order. The
Administrative Law Judge may, among other things:
…
(3) Whenever any party raises issues under either the Georgia or United States Constitution,
the sections of any laws or rules constitutionally challenged and any constitutional provisions
such laws or rules are alleged to violate must be stated with specificity. In addition, an allegation
of unconstitutionality must be supported by a statement either of the basis for the claim of
unconstitutionality as a matter of law or of the facts under which the party alleges that the law or
rule is unconstitutional as applied to the party. Although the Administrative Law Judge is not
authorized to resolve constitutional challenges to statutes or rules, the Administrative Law Judge
may, in the Administrative Law Judge’s discretion, take evidence and make findings of fact
relating to such challenges.
…
Or, if they lost; they could use this record as the basis for an appeal filed in a subsequent judicial proceedings.
616-1-2-.39 Judicial Review. Amended.
Pursuant to the APA, a copy of any petition for judicial review of a Final Decision shall be filed
with the Office of State Administrative Hearings by the party seeking judicial review
simultaneously with the service of the petition upon the Referring Agency. The Referring
Agency shall submit the hearing record as compiled and certified by the Clerk to the reviewing
court.
Of course, they would be very very wrong.
Assume the ALJ allowed all of Petitioners’ materials into the record AND, believing their witnesses genuinely believed everything they said AND reviewing the record, took all evidence as true, and issued findings of fact based on this record. And assume Petitioners subsequently used this administrative record in a real judicial proceeding. Any judge would toss this tripe based on a finding, by crediting this ‘evidence’ the previous tribunal had acted in a manner that was both “capricious and arbitrary” and “contrary to law.”
Then again, maybe petitioners didn’t end the proceedings when ALJ Malihi gave them the option; just so as not to let the cameras go to waste.
At any rate, if this rumor is true that Petitioners could have moved for an Order of Default which would have been granted and which still would not have foreclosed the opportunity to provide live testimony as well as additional documentation then, these people are more incompetent than even I thought. More about that below.
Now, about what actually happened and what will be the result.
When state law requires that all candidates whose names are printed on the ballot must be qualified for office; in theory, exercising a state ballot challenge will work to keep off the ballot the name of an unqualified candidate in that state, depending on the language of the laws in that state. That’s why I proposed this venue for redress (in those states with candidate eligibility laws) in the first place. And, by using a ballot challenge, the crazies who appeared at the OSAH hearing in Georgia yesterday before Administrative Law Judge Malihi, for the first time were not barred from proceeding because of a procedural flaw, such as lack of standing. Indeed, it was this new-found feeling of not being kicked out before the proceeding which produced this nonsensical elation from Petitioner Farrar’s counsel – “I won!!! I won!!!”
But the ballot challenge they presented in this case won’t work not just because they have no idea what they are doing; but because they made the wrong case.
For example, as I have been saying for years now, you cannot win an eligibility case based on a claim Barack Obama is not a NBC. Instead, you can only claim no documentary evidence available in the public record evidences he is a NBC; or that others, including D party officials who claimed he was a NBC refuse to disclose the documentary basis for such claim..(Even better, you can charge that such official with a duty to disclose refused your request!) You cannot charge Barack Obama is not a NBC because his father was not a U.S. citizen. (As I recall, this ‘legal’ fiction originated in 2008 or 9 with Leo Donofrio.) You cannot use non-experts as experts; or printouts of internet postings as documentary evidence. (You CAN, however, use these postings as evidence of other claims in your case, such as the fact, the candidate posted an image.)
A ballot challenge will not succeed where the Petitioner mistakes the forum (referring to the Executive session as a Judicial proceeding); or where he misstates the law (the court in Minor v. Happersett does not limit a definition of NBC to citizens with 2 citizen parents). It won’t succeed where Petitioner or his associates, colleagues, and attorneys have filed multiple challenges; or have a history of failure at such challenges; or a history of bizarre conduct in public; or have earned a reputation as kooks. (Give up, if your lawyer puts herself on the stand.)
But let’s assume, in Thursday’s hearing, Petitioners had miraculously cured all of these infirmities. The question then is, what does it mean to Farrar’s ballot challenge that President Obama ignored his subpoena to appear as his – Farrar’s – witness – I already told you, that’s exactly what he did – and to bring documents that presumably would tend to support his – Farrar’s – case, after ALJ Malahi denied Obama’s Motion to Quash (that subpoena)? Here goes.
Again, I want to clarify who are the parties in that Georgia ballot challenge case heard Thursday by Administrative Law Judge Malihi. Complainant Farrar, Respondent Obama, and the GA Office of Secretary are all parties. Here’s a picture of the docket (calendar) for Thursday’s OSAH hearing. Notice, it lists the Case Name as David Farrar, and not Farrar v. Obama. It provides a box for the name of the Non-Agency Attorney, that is, Farrar’s attorney. That space is empty. It also has a box for the Case Official. Know who that is? The person from the agency who is responsible for representing the (position of the) agency at the hearing. That box is also empty. (Note: I checked the docket for other hearings; the caption for Case Name was always the person seeking redress; and, usually, both the names of non-agency attorneys and case officials were filled in.)
Here is the downloadable subpoena from the GA OSAH web site. Notice in the case caption, that is, the section in the beginning listing the forum – OSAH – and the attached administrative agency – Secretary of State – the words “Petitioner” and “Respondent” appear in lieu of “Plaintiff” and “Defendant.”
Notice that the heading lists the parties as Petitioner and Respondent. Further down, in the section beginning with “YOU ARE HEREBY COMMANDED, to appear in court on behalf of” notice that the party issuing the subpoena, Petitioner or Respondent, identifies itself to the recipient by checking the appropriate box. Also notice, ALJ Malihi’s signature and the OSAH seal are pre-stamped on the downloadable document. (Finally, notice the word “court” as used here refers to this administrative hearing of the Executive branch and not to a Judicial proceeding.)
Notice in particular that the party issuing the subpoena selects whether s/he commands the recipient either to appear and testify as a witness; or to produce a document; or both. (The word “document” here is singular.) Thus, the subpoena allows the party to compel this witness, presumably possessing knowledge as to a specific matter which will help to support his case, to provide such aid, either in the form of sworn testimony, or a document, or both.)
Now, here is the subpoena as filled in by Petitioner Farrar directed to Respondent Obama.
Notice here, Petitioner has checked off, he is both Petitioner and Respondent. And, he is commanding Mr. Obama, who actually is the Respondent; to both be sworn in as a Witness on his – Petitioner’s behalf – but also to produce the several (categories of) documents he lists to support his case.
(On the other hand, when Complainant Swensson wanted documents, he produced a Notice to Produce, as provided for by OSHA Rules of Procedure, cited in his notice.) (Notice that like his fellow Petitioners, he asks for numerous documents, too. Also, see that in the caption he refers to the parties as Plaintiff and Defendant. But, he correctly lists the SoS office as the applicable agency attached to this OSHA hearing.)
Here is Respondent’s Motion to Quash (Petitioner Farrar’s subpoena). (Notice in the caption that, he, too refers to the parties as Plaintiff and Defendant. But, he also correctly lists the SoS office as the applicable agency attached to this OSHA hearing.) Also notice that while the heading is Motion to Quash Subpoenas, plural; Respondent only addresses one Petitioner, Farrar; and mentions the only subpoena issued in this case, by Petitioner Farrar.
And here is ALJ Malahi’s denial of that Motion. Notice he raises only 2 narrow grounds: failure to cite support to claim of hardship to attend; and 2) failure to establish grounds to find improper service. Interestingly, he calls the Petitioners “Plaintiffs,” and Respondent, “Defendant.” But he gets the SoS office right. Notice that he copies the plural Subpoenas in his heading. But, for some reason, he lists all Petitioners in the caption, whereas by this time, the cases had been severed.
(I will not comment in depth as to whether ALJ Malahi should have granted the Motion to Quash except to say, given the limited purpose for which the OSHA subpoena form was obviously intended, that is, to compel a witness to testify as to a specific fact or circumstance supported perhaps by a corresponding document under his or her control; and given Petitioner’s obvious attempt to expand that scope; I think ALJ Malihi had ample grounds to support a decision to quash based on Obama’s objections, Petitioner was impermissably trying to bolster its case by subverting the narrow aim of the subpoena in order to circumvent rules prohibiting Discovery.)
616-1-2-.38 Discovery. Amended.
Discovery shall not be available in any proceeding before an Administrative Law Judge except to
the extent specifically authorized by law. Nothing in this Rule is intended to limit the provisions
of Article 4 of Chapter 18 of Title 50 or Rule 37.
So, when Respondent/Witness (Obama), ignoring a subpoena still in force; absented himself from these proceedings; in what way did this failure to appear impact Petitioner’s case? In other words, just because he didn’t show up; did Farrar win?
Well, that depends on a lot of things, including who bears the burden of proof. That is, in a proceeding the purpose of which is to obtain a (non-binding) recommendation from the ALJ to the SoS to take Obama’s name off the ballot; did Farrar need to prove, he is not a NBC? Or did Obama need to prove he is a NBC? Or, did the SoS need to prove it had acted in accordance with existing rules and regulations with respect to preparing the ballot?
(Note: For the sake of argument, I assumed that ALJ Malihi was so upset with being ‘dissed’ by counsel for Respondent, he would exercise whatever authority available to lock him out of these proceedings.)
Let’s look at the Administrative Rules.
616-1-2-.07 Burden of Proof. Amended.
(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;
(b) a party challenging the issuance, revocation, suspension, amendment, or non-renewal of a
license who is not the licensee shall bear the burden;
(c) an applicant for a license that has been denied shall bear the burden;
(d) any licensee that appeals the conditions, requirements, or restrictions placed on a license
shall bear the burden; and
(e) an applicant or recipient of a public assistance benefit shall bear the burden unless the case
involves an agency action reducing, suspending, or terminating a benefit.
(2) Prior to the commencement of the hearing, the Administrative Law Judge may determine
that law or justice requires a different placement of the burden of proof.
Petitioners’ original complaint is that SoS Kemp should not have allowed the name of Barack Obama on the GA D Presidential preference primary ballot because under GA law, only the names of candidates who are qualified for office may be printed on the ballot; AND President Obama is Constitutionally unqualified for the job. Well, (1) says, the agency bears the burden of proof (as to why it acted as it did, in this case, determining to keep Obama’s name on the ballot). Only, the SoS, while a party; was not the named Respondent. And no one from the office of SoS was listed as participating in the hearing. But (2) says, the ALJ can shift that burden before the hearing begins. By naming Obama the Respondent/Defendant, is this what ALJ Malahi did? In other words, did he make Petitioner bear the burden of proof that Obama is not a NBC? If so, Petitioners alone failed to meet that burden.
But what if the office of the SoS had been named the Respondent and, therefore, bore the burden of proof in the case? Watch this.
Look at this rule on Nature of Proceedings.
616-1-2-.21 Nature of Proceedings. Amended.
(1) In a hearing conducted under this Chapter, the Administrative Law Judge shall make an
independent determination on the basis of the competent evidence presented at the hearing.
Except as provided in Rule 29, the Administrative Law Judge may make any disposition of the
matter available to the Referring Agency.
(2) If a party includes in its pleadings a challenge to the regularity of the process by which the Referring Agency reached a decision, the Administrative Law Judge shall take evidence and reach a determination on such a challenge at the outset of the hearing. The party making such a challenge shall have the burden of proof. If the Administrative Law Judge finds the challenge
meritorious, the Administrative Law Judge may remand the matter to the Referring Agency.
(3) The hearing shall be de novo in nature, and the evidence on the issues in a hearing shall not
be limited to the evidence presented to or considered by the Referring Agency prior to its
decision.
(4) Unless otherwise provided by law, the standard of proof on all issues in a hearing shall be a preponderance of the evidence.
Recall the definition of “rules,” above: “Rule” means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency.”
Petitioners’ original complaint, supported by all of the materials they produced to make their case, is that SoS Kemp should not have allowed the name of Barack Obama on the GA D Presidential preference primary ballot because under GA law, only the names of candidates who are qualified for office may be printed on the ballot; AND President Obama is Constitutionally unqualified for the job. That was a fatal mistake. Instead – and I am borrowing this from my work on those citizen complaints of election fraud to state A’sG, in the sidebar – they should have argued this.
The SoS allowed the name of Barack Obama on the ballot using bad rules. That is, he carried out his ministerial duty to oversee elections by using rules that allowed onto the ballot the name of a candidate for whom even the D’s refuse to provide documentary evidence available in the public record; is Constitutionally qualified for the job. Under the Nature of Proceedings, above, this would place the burden of proof back on Petitioner; the standard, a preponderance of the evidence (>50%). And that’s a good thing. If the burden remained on the SoS, he would argue, the rules are fine, and no one could demonstrate they haven’t worked to keep an unqualified candidate off the ballot. (Remember, nothing Petitioners argued could ever establish Obama is not a NBC.)
But with the burden of proof shifted to them, Petitioners could have made their case merely by issuing subpoenas for all of those officials involved in signing the 2008 Certification of Nomination from the DNC Services Corporation swearing the then nominee Obama was “duly nominated,” that is, vetted for Constitutional eligibility under the DNC Charter; and submitting this to the GA SoS in 2008 to get his name printed on the ballot. Again, the blueprint for this argument and the evidence which Petitioners could have submitted into the record to support this argument; is laid out in those citizen complaints.
Do you suppose any of the D witnesses would have shown up? Again, under the Administrative Procedure rule regarding default (above), if a default issued, this means, the ALJ has the authority to ignore any input from these witnesses. But this absence would actually speak volumes. It would demonstrate for everyone to see what we – I -have been saying all along: everyone else is willing to explain why Barack Obama is a NBC but the official members of the D party. Not when it comes to answering the question for voters and constituents – see the evidence compiled in the citizen complaints to state A’sG – and not when it comes to explaining his eligibility to an official judicial or administrative body. No reasonable person could be expected to trust the word of people who refuse to back up their word with their presence at this proceeding.
The Case Official representing the Respondent SoS could only argue back, ‘We did what we always do; accept the representation of the candidate’s (presumptive) qualification, from the Party.’
Finally, GA Petitioners could have asked that the SoS immediately promulgate appropriate rules so as to ensure that from now on, only the names of qualified candidates will appear on the state ballot.
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50. STATE GOVERNMENT
CHAPTER 13. ADMINISTRATIVE PROCEDURE
ARTICLE 1. GENERAL PROVISIONS
O.C.G.A. § 50-13-9 (2011)
§ 50-13-9. Petition for promulgation, amendment, or repeal of rule; agency response
An interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule. Each agency shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. Within 30 days after submission of a petition, the agency either shall deny the petition in writing, stating its reasons for the denial, or shall initiate rule-making proceedings in accordance with Code Section 50-13-4.
And, under the timetable provided for, by law, these rules could be in place in time for the 2012 general election ballot.
Okay, so now we have confirmation that 1) President Obama will not be attending today’s administrative law hearing in Georgia and 2) neither will Attorney Michael Jablonski, representing him in that matter.
For those of you who, since learning these latest developments, have experienced a sudden descent from the manic phase of the bipolar-like disorder associated with blind belief in the probable success of any ‘legal’ ploy attempted by Attorney Orly Taitz in her quixotic pursuit of exposing President Obama is not a NBC; I offer a little ‘chillin’ out’ music for your listening pleasure.
Now, let’s work.
Here is the letter sent by Mr. Jablonski to Secretary Kemp. (H/T Jack Ryan.)
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
Here’s the reason why.
In previous posts on the subject, I cited several portions of the Georgia statutes which apply to the administrative process. In sum, there are 2 ways a challenge to the conduct of the Secretary of State with respect to ballot challenges, can reach the OSAH. 1) The elector aggrieved by an adverse decision of the SoS can appeal that adverse decision to the OSAH. 2) The SoS, on receiving a challenge to his act; can ‘certify’ the challenge directly to the OSAH.
For example, this section of the law describes how to file a ballot challenge.
O.C.G.A. § 21-2-5
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 21. ELECTIONS
CHAPTER 2. ELECTIONS AND PRIMARIES GENERALLY
ARTICLE 1. GENERAL PROVISIONS
O.C.G.A. § 21-2-5 (2011)
§ 21-2-5. Qualifications of candidates for federal and state office; determination of qualifications
(a) Every 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.
(b) The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate. Within two weeks after the deadline for qualifying, any elector who is eligible to vote for a candidate may challenge the qualifications of the candidate by filing a written complaint with the Secretary of State giving the reasons why the elector believes the candidate is not qualified to seek and hold the public office for which he or she is offering. Upon his or her own motion or upon a challenge being filed, the Secretary of State shall notify the candidate in writing that his or her qualifications are being challenged and the reasons therefor and shall advise the candidate that he or she is requesting a hearing on the matter before an administrative law judge of the Office of State Administrative Hearings pursuant to Article 2 of Chapter 13 of Title 50 and shall inform the candidate of the date, time, and place of the hearing when such information becomes available. The administrative law judge shall report his or her findings to the Secretary of State.
(c) The Secretary of State shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering. If the Secretary of State determines that the candidate is not qualified, the Secretary of State shall withhold the name of the candidate from the ballot or strike such candidate’s name from the ballot if the ballots have been printed. If there is insufficient time to strike the candidate’s name or reprint the ballots, a prominent notice shall be placed at each affected polling place advising voters of the disqualification of the candidate and all votes cast for such candidate shall be void and shall not be counted.
(d) In the event that a candidate pays his or her qualifying fee with a check that is subsequently returned for insufficient funds, the Secretary of State shall automatically find that such candidate has not met the qualifications for holding the office being sought, unless the bank, credit union, or other financial institution returning the check certifies in writing by an officer’s or director’s oath that the bank, credit union, or financial institution erred in returning the check.
(e) The elector filing the challenge or the candidate challenged shall have the right to appeal the decision of the Secretary of State by filing a petition in the Superior Court of Fulton County within ten days after the entry of the final decision by the Secretary of State. The filing of the petition shall not itself stay the decision of the Secretary of State; however, the reviewing court may order a stay upon appropriate terms for good cause shown. As soon as possible after service of the petition, the Secretary of State shall transmit the original or a certified copy of the entire record of the proceedings under review to the reviewing court. The review shall be conducted by the court without a jury and shall be confined to the record. The court shall not substitute its judgment for that of the Secretary of State as to the weight of the evidence on questions of fact. 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.
An aggrieved party may obtain a review of any final judgment of the superior court by the Court of Appeals or the Supreme Court, as provided by law.
And this section of the law describes the ways an agency dispute can reach the OSAH.
O.C.G.A. § 50-13-41
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50. STATE GOVERNMENT
CHAPTER 13. ADMINISTRATIVE PROCEDURE
ARTICLE 2. OFFICE OF STATE ADMINISTRATIVE HEARINGS
O.C.G.A. § 50-13-41 (2011)
§ 50-13-41. Hearing procedures; powers of administrative law judge; issuance of decision; review
(a)(1) Whenever a state agency authorized by law to determine contested cases initiates or receives a request for a hearing in a contested case which is not presided over by the agency head or board or body which is the ultimate decision maker, the hearing shall be conducted by the Office of State Administrative Hearings, and such hearings shall be conducted in accordance with the provisions of this chapter and the rules and regulations promulgated under this article.
(2) An administrative law judge shall have the power to do all things specified in paragraph (6) of subsection (a) of Code Section 50-13-13.
(b) An administrative law judge shall have all the powers of the referring agency with respect to a contested case. Subpoenas issued by an administrative law judge shall be enforced in the manner set forth in paragraph (7) of subsection (a) of Code Section 50-13-13. Nothing in this article shall affect, alter, or change the ability of the parties to reach informal disposition of a contested case in accordance with paragraph (4) of subsection (a) of Code Section 50-13-13.
(c) Within 30 days after the close of the record, an administrative law judge shall issue a decision to all parties in the case except when it is determined that the complexity of the issues and the length of the record require an extension of this period and an order is issued by an administrative law judge so providing. Every decision of an administrative law judge shall contain findings of fact, conclusions of law, and a recommended disposition of the case.
(d) Except as otherwise provided in this article, in all cases every decision of an administrative law judge shall be treated as an initial decision as set forth in subsection (a) of Code Section 50-13-17, including, but not limited to, the taking of additional testimony or remanding the case to the administrative law judge for such purpose. On review, the reviewing agency shall consider the whole record or such portions of it as may be cited by the parties. In reviewing initial decisions by the Office of State Administrative Hearings, the reviewing agency shall give due regard to the administrative law judge’s opportunity to observe witnesses. If the reviewing agency rejects or modifies a proposed finding of fact or a proposed decision, it shall give reasons for doing so in writing in the form of findings of fact and conclusions of law.
(e)(1) A reviewing agency shall have a period of 30 days following the entry of the decision of the administrative law judge in which to reject or modify such decision. If a reviewing agency fails to reject or modify the decision of the administrative law judge within such 30 day period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.
(2) A reviewing agency may prior to the expiration of the review period provided for in paragraph (1) of this subsection extend such review period by order of the reviewing agency in any case wherein unusual and compelling circumstances render it impracticable for the reviewing agency to complete its review within such period. Any such order shall recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within such review period. Any such extension by the reviewing agency shall be for a period of time not to exceed 30 days. Prior to the expiration of the extended review period, the review period may be further extended by further order of the reviewing agency for one additional period not to exceed 30 days if unusual and compelling circumstances render it impracticable to complete the review within the extended review period. Such further order further extending the review period shall likewise recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within the review period as previously extended. If a reviewing agency fails to reject or modify the decision of the administrative law judge within the extended review period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.
(3) An agency may provide by rule that proposed decisions in all or in specified classes of cases before the Office of State Administrative Hearings will become final without further agency action and without expiration of the 30 day review period otherwise provided for in this subsection.
As I said, I didn’t know which route got us to ‘here.’
I am not privy to what chain of events preceded this hearing or, to the documents previously presented to the Secretary; I have no idea how this case reached the administrative hearing level. But, obviously, Farrar must have failed to persuade Kemp to remove Obama’s name from the ballot in that state’s 2012 Democratic Presidential primary. Farrar disagreed with that decision. Under GA law, this led to the administrative hearing. Orly subpoenaed Obama to appear at the hearing in order to provide testimonial evidence which would support her client’s claim that by refusing to do as asked, that is, to remove Obama’s name from the primary ballot; the SoS had broken the law.
Now, I know this case ended up in front of the ALJ not as the result of an adverse decision against Mr. Farrar by the SoS. Evidently, Mr. Kemp had never issued such ruling but only referred the matter directly to the OSAH. How do I know?
Because Attorney Jablonski referred to Secretary Kemp’s “hearing request.” That is, the request for hearing did not come from Farrar but from Secretary Kemp.
And I know why Mr. Kemp wrote what he did.
I regret that you do not feel that the proceedings are appropriate, my referral of this matter to anadministrative law judge at OSAH was in keeping with Georgia law, and specifically O.C.G.A. § 21-2-5.
First, let me remind you that in yesterday’s post, I referenced a part of the law which states, the authority vested in OSAH is limited by § 50-4-3.
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50. STATE GOVERNMENT
CHAPTER 13. ADMINISTRATIVE PROCEDURE
ARTICLE 2. OFFICE OF STATE ADMINISTRATIVE HEARINGS
O.C.G.A. § 50-13-40 (2011)
§ 50-13-40. Office created; chief state administrative law judge
(a) There is created within the executive branch of state government the Office of State Administrative Hearings. The office shall be independent of state administrative agencies and shall be responsible for impartial administration of administrative hearings in accordance with this article. The office shall be assigned for administrative purposes only, as that term is defined in Code Section 50-4-3, to the Department of Administrative Services. …
Now, since most of you evidently didn’t bother to look up § 50-4-3; I re-print the law here, in its entirety.
O.C.G.A. § 50-4-3
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50. STATE GOVERNMENT
CHAPTER 4. ORGANIZATION OF EXECUTIVE BRANCH GENERALLY
O.C.G.A. § 50-4-3 (2011)
§ 50-4-3. Assignment for administrative purposes only; authorities to retain separate identities
(a) An agency assigned to a department for administrative purposes only shall:
(1) Exercise its quasi-judicial, rule-making, licensing, or policy-making functions independently of the department and without approval or control of the department;
(2) Prepare its budget, if any, and submit its budgetary requests, if any, through the department; and
(3) Hire its own personnel if authorized by the Constitution of this state or by statute or if the General Assembly provides or authorizes the expenditure of funds therefor.
(b) The department to which an agency is assigned for administrative purposes only shall:
(1) Provide record keeping, reporting, and related administrative and clerical functions for the agency;
(2) Disseminate for the agency required notices, rules, or orders adopted, amended, or repealed by the agency;
(3) Provide staff for the agency subject to paragraph (3) of subsection (a) of this Code section; and
(4) Include in the departmental budget the agency’s budgetary request, if any, as a separate part of the budget and exactly as prepared and submitted to the department by the agency.
(c) Whenever any authority is assigned for administrative purposes, it means only that the state department through which the authority deals with the state shall be that department to which the authority is assigned. Any authority created by state law shall retain its separate identity as an instrumentality of the state and a public corporation. The department to which an authority is assigned is authorized, only with the approval of the authority, to perform for such authority any or all of the functions set forth in subsection (b) of this Code section.
This means that, when the SoS asks (through a referral) the OSAH to issue a finding in a disputed case; it is essentially engaging OSAH as a consultant. In this case, Secretary Kemp merely shifted the burden of addressing the complaint brought to his office by Mr. Farrar; to its consulting branch, OSAH, for reasons about which I will not speculate in this article, which is already too long.
BUT THE EXECUTIVE AUTHORITY TO DETERMINE WHOSE NAME GOES ON THE BALLOT IS ALWAYS VESTED IN THE OFFICE OF THE SECRETARY OF STATE, AND NOT OSAH.
In short, Secretary Kemp tried to avoid dealing with this issue by relying on OSAH, consultants for his office, to provide some political cushioning for his conduct. But now that Mr. Jablonski has opted out of the circus; he is (seemingly) protesting, at least in public, the fact the issue has been tossed right back in his lap.
Trust me; the outcome would have been the same, either way.
In yesterday’s post, WITH ALL DUE RESPECT to ORLY TAITZ I included a link to the home page of the Georgia Office of State Administrative Hearings (“OSAH”) containing a video explaining the administrative hearing process. Please click on this link now, and watch the video. Pay attention to who is the Petitioner” (or “Plaintiff”)at these hearings, and who is the “Respondent” (or “Defendant”). Then, you will understand what I am about to say.
The ‘person’ on ‘trial’ on January 26 is the Office of the Secretary of State of Georgia, Brian P. Kemp, and not President Obama. Yes, the words “Plaintiffs” and “Defendants” appear on both the ‘pleadings’ and the rulings issued by Administrative Law Judge Michael M. Malihi. But, technically, Farrar is the Petitioner. And, technically, guess who is the Respondent? Yep; Secretary of State Kemp.
Thus, even though the question to be answered through this hearing process tangentially involves Mr. Obama; no question, but for Mr. Farrar’s subpoena, Mr. Obama would not be expected to attend. So, why did he have his attorney, Orly Taitz, issue that subpoena? You won’t believe this: she wants him there as a witness for her client, Petitioner Farrar!
I am not privy to what chain of events preceded this hearing or, to the documents previously presented to the Secretary; I have no idea how this case reached the administrative hearing level. But, obviously, Farrar must have failed to persuade Kemp to remove Obama’s name from the ballot in that state’s 2012 Democratic Presidential primary. Farrar disagreed with that decision. Under GA law, this led to the administrative hearing. Orly subpoenaed Obama to appear at the hearing in order to provide testimonial evidence which would support her client’s claim that by refusing to do as asked, that is, to remove Obama’s name from the primary ballot; the SoS had broken the law.
I cannot predict exactly what will happen at Thursday’s hearing before Georgia Administrative Law Judge Malihi. But I am absolutely certain what will not: President Obama will not participate in this dog and pony show. For one thing, as I already explained in WITH ALL DUE RESPECT to ORLY TAITZ; he was not ordered to appear, despite the media circus triggered both by Orly’s ‘misinterpretation’ of ALJ Malihi’s refusal to grant Defendant’s motion to quash Plaintiff’s subpoena and the AP’s grossly incompetent reporting of her misinterpretation. In fact, as Orly surely must know, ALJ Malihi has no authority to compel him to appear. How do Iknow this, given the fact, this is not my case? Because, unfamiliar with the scope of authority vested in Administrative Law Judges in the state of Georgia; I looked this up.
First, a primer on the founding principle of governmental separation of powers or, checks and balances, which produced these 3 separate branches: Executive, Legislative, and Judicial.
The ballot challenge case brought by Orly on behalf of her client, Farrar, originated in the Executive branch, with the Office of the Secretary of State based on that office’s statutory oversight of the function of elections. Basically, Farrar charged, exercising the lawful authority conferred by GA statutes (Legislative branch); the SoS should remove Obama’s name from the D primary ballot in that state on the basis that 1) under GA law, the state may only print on the ballot the names of those candidates qualified for office; and 2) Presidential candidate Barack Obama is not Constitutionally qualified for the job. The office of the SoS referred the matter to the Office of State Administrative Hearings (Executive branch).
Did you catch that? The GA Office of State Administrative Hearings is part of the Executive branch of government and not, as I suspect most of you assumed, the Judicial branch.
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50. STATE GOVERNMENT
CHAPTER 13. ADMINISTRATIVE PROCEDURE
ARTICLE 2. OFFICE OF STATE ADMINISTRATIVE HEARINGS
O.C.G.A. § 50-13-40 (2011)
§ 50-13-40. Office created; chief state administrative law judge
(a) There is created within the executive branch of state government the Office of State Administrative Hearings. The office shall be independent of state administrative agencies and shall be responsible for impartial administration of administrative hearings in accordance with this article. The office shall be assigned for administrative purposes only, as that term is defined in Code Section 50-4-3, to the Department of Administrative Services. …
The authority of the OSAH is strictly limited to the administration of an office or agency of the Executive branch and does not extend to authority over the person, as spelled out in GA law.
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50. STATE GOVERNMENT
CHAPTER 13. ADMINISTRATIVE PROCEDURE
ARTICLE 1. GENERAL PROVISIONS
O.C.G.A. § 50-13-13 (2011)
§ 50-13-13. Opportunity for hearing in contested cases; notice; counsel; subpoenas; record; enforcement powers; revenue cases
(a) In addition to any other requirements imposed by common law, constitution, statutes, or regulations:
(1) In any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice served personally or by mail;
(2) The notice shall include:
(A) A statement of the time, place, and nature of the hearing;
(B) A statement of the legal authority and jurisdiction under which the hearing is to be held;
(C) A reference to the particular section of the statutes and rules involved;
(D) A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time, the notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished; and
(E) A statement as to the right of any party to subpoena witnesses and documentary evidence through the agency;
(3) Opportunity shall be afforded all parties to be represented by legal counsel and to respond and present evidence on all issues involved;
(4) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default;
(5) Unless specifically precluded by statute, in addition to the agency, any contested case may be held before any agency representative who has been selected and appointed by the agency for such purpose. Before appointing a hearing representative, the agency shall determine that the person under consideration is qualified by reason of training, experience, and competence;
(6) The agency, the hearing officer, or any representative of the agency authorized to hold a hearing shall have authority to do the following: administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing briefs; dispose of motions to dismiss for lack of agency jurisdiction over the subject matter or parties or for any other ground; dispose of motions to amend or to intervene; provide for the taking of testimony by deposition or interrogatory; and reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the agency or the hearing officer;
(7) Subpoenas shall be issued without discrimination between public and private parties. When a subpoena is disobeyed, any party may apply to the superior court of the county where the contested case is being heard for an order requiring obedience. (All emphasis added by jbjd.) Failure to comply with such order shall be cause for punishment as for contempt of court. The costs of securing the attendance of witnesses, including fees and mileage, shall be computed and assessed in the same manner as prescribed by law in civil cases in the superior court;
(8) A record shall be kept in each contested case and shall include:
(A) All pleadings, motions, and intermediate rulings;
(B) A summary of the oral testimony plus all other evidence received or considered except that oral proceedings or any part thereof shall be transcribed or recorded upon request of any party. Upon written request therefor, a transcript of the oral proceeding or any part thereof shall be furnished to any party of the proceeding. The agency shall set a uniform fee for such service;
(C) A statement of matters officially noticed;
(D) Questions and offers of proof and rulings thereon;
(E) Proposed findings and exceptions;
(F) Any decision (including any initial, recommended, or tentative decision), opinion, or report by the officer presiding at the hearing; and
(G) All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case; and
(9) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
(b) In proceedings before the agency, the hearing officer, or any representative of the agency authorized to hold a hearing, if any party or an agent or employee of a party disobeys or resists any lawful order of process; or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document; or refuses to appear after having been subpoenaed; or, upon appearing, refuses to take the oath or affirmation as a witness; or after taking the oath or affirmation, refuses to testify, the agency, hearing officer, or other representative shall have the same rights and powers given the court under Chapter 11 of Title 9, the “Georgia Civil Practice Act.” If any person or party refuses as specified in this subsection, the agency, hearing officer, or other representative may certify the facts to the superior court of the county where the offense is committed for appropriate action, including a finding of contempt. The agency, hearing officer, or other representative shall have the power to issue writs of fieri facias in order to collect fines imposed for violation of a lawful order of the agency, hearing officer, or other representative.
(c) Except in cases in which a hearing has been demanded under Code Section 50-13-12, subsection (a) of this Code section and the other provisions of this chapter concerning contested cases shall not apply to any case arising in the administration of the revenue laws, which case is subject to a subsequent de novo trial of the law and the facts in the superior court.
Thus, not only did ALJ Malihi not order Mr. Obama to obey Plaintiff’s subpoena to appear but, he could not issue such an order, anyway, lacking the authority to do so, under the law. Nope; his job is to decide whether the agency followed the law. You want to compel the President’s attendance at an administrative hearing so that he can testify on behalf of your client that by not removing his name from the primary ballot; the Secretary of State had broken the law? Go ask the Superior Court. (And don’t hold your breath.)
Then, there’s this, express limitation on the weight of any ruling resulting from that administrative hearing.
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50. STATE GOVERNMENT
CHAPTER 13. ADMINISTRATIVE PROCEDURE
ARTICLE 2. OFFICE OF STATE ADMINISTRATIVE HEARINGS
O.C.G.A. § 50-13-41 (2011)
§ 50-13-41. Hearing procedures; powers of administrative law judge; issuance of decision; review
(a)(1) Whenever a state agency authorized by law to determine contested cases initiates or receives a request for a hearing in a contested case which is not presided over by the agency head or board or body which is the ultimate decision maker, the hearing shall be conducted by the Office of State Administrative Hearings, and such hearings shall be conducted in accordance with the provisions of this chapter and the rules and regulations promulgated under this article.
(2) An administrative law judge shall have the power to do all things specified in paragraph (6) of subsection (a) of Code Section 50-13-13.
(b) An administrative law judge shall have all the powers of the referring agency with respect to a contested case. Subpoenas issued by an administrative law judge shall be enforced in the manner set forth in paragraph (7) of subsection (a) of Code Section 50-13-13. Nothing in this article shall affect, alter, or change the ability of the parties to reach informal disposition of a contested case in accordance with paragraph (4) of subsection (a) of Code Section 50-13-13.
(c) Within 30 days after the close of the record, an administrative law judge shall issue a decision to all parties in the case except when it is determined that the complexity of the issues and the length of the record require an extension of this period and an order is issued by an administrative law judge so providing. Every decision of an administrative law judge shall contain findings of fact, conclusions of law, and a recommended disposition of the case.
(d) Except as otherwise provided in this article, in all cases every decision of an administrative law judge shall be treated as an initial decision as set forth in subsection (a) of Code Section 50-13-17, including, but not limited to, the taking of additional testimony or remanding the case to the administrative law judge for such purpose. On review, the reviewing agency shall consider the whole record or such portions of it as may be cited by the parties. In reviewing initial decisions by the Office of State Administrative Hearings, the reviewing agency shall give due regard to the administrative law judge’s opportunity to observe witnesses. If the reviewing agency rejects or modifies a proposed finding of fact or a proposed decision, it shall give reasons for doing so in writing in the form of findings of fact and conclusions of law.
(e)(1) A reviewing agency shall have a period of 30 days following the entry of the decision of the administrative law judge in which to reject or modify such decision. If a reviewing agency fails to reject or modify the decision of the administrative law judge within such 30 day period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law. (Emphasis added by jbjd.)
(2) A reviewing agency may prior to the expiration of the review period provided for in paragraph (1) of this subsection extend such review period by order of the reviewing agency in any case wherein unusual and compelling circumstances render it impracticable for the reviewing agency to complete its review within such period. Any such order shall recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within such review period. Any such extension by the reviewing agency shall be for a period of time not to exceed 30 days. Prior to the expiration of the extended review period, the review period may be further extended by further order of the reviewing agency for one additional period not to exceed 30 days if unusual and compelling circumstances render it impracticable to complete the review within the extended review period. Such further order further extending the review period shall likewise recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within the review period as previously extended. If a reviewing agency fails to reject or modify the decision of the administrative law judge within the extended review period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.
(3) An agency may provide by rule that proposed decisions in all or in specified classes of cases before the Office of State Administrative Hearings will become final without further agency action and without expiration of the 30 day review period otherwise provided for in this subsection.
In other words, the Secretary need not adopt the recommendation of the ALJ, anyway!
Phew! That’s enough for now; let’s start with this and then tomorrow, I will spell out what I predictwill happen on Thursday.
Sometimes during my forays onto other blogs, I am compelled either by request or necessity to clarify or explain misunderstandings making the internet rounds. But this pernicious misinterpretation merits its own post. First, the ‘chase’:
No judge has issued an Order requiring President Obama to appear, all reporting by the AP and web sites quoting the AP; and Orly’s cyberspace victory dance – “I won!!! I won!!!” – notwithstanding.
The comment that first got my attention, posted on CW, included what was ostensibly an email the writer had received from Orly. Having successfully managed to avoid wading into her site for the past several months, I now had to go there to find the ‘original.’ Here it is, in its entirety.
I won!!! I won!!! I won!!! Judge Malihi ruled in my favor. Obama’s motion to quash my subpoena is denied! He has to appear at trial and present all the documents that I demanded to produce in my subpoena! (Note from jbjd: THIS IS NOT A TRIAL! IT IS MERELY AN ADMINISTRATIVE HEARING! The narrow legal question to be answered here isn’t even whether candidate Obama is Constitutionally qualified for President and so may appear on the Georgia ballot; but whether Obama followed the rules set by election officials, to get on the ballot. Know your government.Georgia Office of State Administrative Hearings)
Posted on | January 20, 2012 | 163 Comments
It has been 3 years of 24/7/365 fight. I was defamed, viciously maligned by so many Obots (Obama bots), pro-Obama media thugs, by a few corrupt officials and judges. Recently even people, who claimed to be on my side turned sides and viciously defamed me and attacked me. Among them were Arlen Williams, Dean Haskins, owner of a blog Birther Summit, Bob Nelson-owner of a blog Birther Report or ObamaReleaseYourRecords, Helen Tansey -owner of a blog art2superpac and even attorneys, who should’ve had some professional ethics. Attorneys Gary Kreep and Philip Berg filed insane pleadings, saying that I tried to hire a hit man to kill Lisa Liberi, legal assistant of attorney Berg and kidnap children of a web master Lisa Ostella. It has been 3 years of total nightmare, these people were like a pack of wild dogs attacking me and coming up with each and every accusation in the book. Now I am vindicated. My legal action is with merit. We are going to trial on January 26, 2012. I issued subpoenas. Barack Obama through his attorney Michael Jablonski filed a motion to quash my subpoena and all the other subpoenas. I was attacked yet again in this motion. Judge Malihi just issued an order. Motion to quash my subpoena was denied. Barack Obama, President of the United States will have to appear in court on January 26 and comply with my subpoena and produce all the documents, that I demanded. Interesting, that two other attorneys are representing plaintiffs on similar matters: Van Irion and Mark Hatfield. They could have an opportunity to examine Obama with me, however either because I was maligned so badly or because they were scared to press the most explosive charges, these attorneys filed motions for their cases to be severed from my case. Their motions were granted. Irion’s case will be heard first. He stated on the record, that his case will take only 10 minutes and will be limited to ascertainment if Obama is legitimate based on the precedent of Minor v Happerset. Obama will not be answering any of his questions. Second will be a case presented by attorney Hatfield. He, also, severed his case and did not issue any subpoenas. In his motion to sever he stated that he did not want to be joined in the same complaint with me, because he did not want to be part of a case, where I brought forward allegations of elections fraud and social security fraud committed by Barack Obama. Hatfield was saying that he was afraid that his clients will be prejudiced by such explosive allegations. Yesterday, after I filed an opposition to motion to quash, attorney Hatfield tried to follow suit by filing a notice to appear, however notice does not have as much of a force as a subpoena and I do not believe Obama will be complying with a notice, particularly since Hatfield’s complaint does not entail the same charges as mine. My case will be heard third. My case will not be limited to definition of natural born based on a case Minor v Happersett. I will be also presenting a case, showing that elections fraud was committed by Barack Obama, that he is using a forged birth certificate, stolen or fraudulently obtained Social Security number and that there is no evidence to believe that the last name he is using is legally his, due to the fact, that in his mother’s passport he goes under the name Soebarkah and in his school registration in Indonesia he went by the last name Soetoro. There is no evidence of legal change of name.
I wanted to thank people who helped me along the way with donations, who did not stick a knife in my back, like the ones mentioned before. I am asking my supporters to donate to this work, as I am paying for airfare and hotel of witnesses and a number of other expenses. Also, if you are a CA Republican please, download my nomination for the US Senate and sign and circulate it.
nomination papers (link omitted by jbjd)
Make no mistake about it. This is the beginning of Watergate2 or ObamaForgeryGate. I believe this is the second time in the U.S. history a sitting President is ordered to comply with a subpoena, and produce documents, which might eventually bring criminal charges to the President and a number of high ranking individuals.
I feel extremely proud to be a part of this historic moment. I guess an American dream is still alive, as this subpoena was issued by an immigrant, who was raised in a communist dictatorship of the Soviet Union and came here with one suitcase with a couple of dresses, who had to study English, to study law at night, while working as a dentist and raising a family with 3 children. Only in America is this possible.
Humbly,
Dr. Orly Taitz, ESQ
So many of her statements triggered automatic internal rebuttals that I could have written volumes before making the record clear. But, even before creating “jbjd,” I had written numerous comments on others’ blogs explaining that if Obama becomes the D nominee for POTUS the only way to keep him out of the WH is to keep his name off the ballot. (I posted my epiphany on NoQuarter the first week in August 2008.) So, I knew what to write first.
Here is the response I posted on CW.
I set up my blog at the end of August 2008. One of the first posts instructed citizens, the only way to keep Obama’s name off the ballot if he takes the D nomination; was to challenge his eligibility in those states that require candidate eligibility to appear on the ballot.
GA is one of those states. And, I know that Orly has known since back in 2008 that GA is one of those states because, at that time, I told her. That is, I published a memo in which I proposed there are 2 ways to keep Obama out of the WH. First, of course, was the ballot challenge; and I specifically mentioned GA.
For example, here is the requirement to get onto the general election ballot in the State of GA, under the Official Code of GA Annotated (O.C.G.A.), §21-2-5, Qualifications of candidates for federal and state office; determination of qualifications. “Every candidate for federal and state office who is certified by the state executive committee of a political party … shall meet the constitutional and statutory qualifications for holding the office being sought.” (Note: President, U.S. Senator, or U.S. Representative are federal offices.) This means that, according to GA law, when the state Party chair submits the Party nominee to the Secretary of State (“S of S”) to be put onto the general election ballot, that nominee must be eligible for the office sought. But there is no corresponding GA law that says the S of S receiving this paperwork from the state Party chair must verify this eligibility. Under that same law, the State of GA set up a mechanism by which voters may file a challenge with the S of S questioning the eligibility of a candidate to appear on the ballot; and for the S of S to initiate such a challenge on her own. “The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate.” But again, the operative word here is “may.” In other words, even in a state like GA, one of the few states with laws that provide for a mechanism for voters to challenge a candidate’s eligibility to get onto the general election ballot, no law requires the state to investigate the candidate based on that challenge. (Notice that technically, even GA law does not confer power on the S of S to determine whether any candidate is eligible for the office sought but only to determine this: whether he is eligible by virtue of satisfying the requirements of the office sought to get onto the general election ballot.) http://jbjd.org/2008/11/30/find-out-whether-barack-obama-is-a-natural-born-citizen-as-required-under-article-ii-of-the-us-constitution-and-stop-the-electoral-college-from-voting-for-him-if-he-is-not/
It was this memo, which also included the idea of a complaint filed under the Federal Declaratory Judgment Act, using National Guard Plaintiffs; which first attracted Orly’s attention to my work, and triggered our short-lived collaboration, during which time I drafted the military complaint; and intervened at the request of a soldier who had been trying unsuccessfully to get her to withdraw the waiver he signed to join that complaint. .
So, more than 3 wasted years and countless squandered dollars in contributions and who knows how many frequent flyer miles later; she decided to take my advice and challenge the qualifications of a candidate for office in a state that only allows to be printed on the ballot the names of those candidates qualified for the job. And, given this legal route of redress, she would have you believe, the court has endorsed her methodology.
Further, based on this demonstrated pattern of out-of-control spending and prolongued failure to heed sound legal advice; evidently, she now feels worthy of soliciting your support for the U.S. Senate.
“Humbly”? Yeah, right..
P.S. Of course, this in no way means, I agree with either the substantive case she has brought in GA or, her ‘take’ on the (seeming) success of her case. In the end, she will fail in this effort as always. Please, keep in mind, in real life logic, failing to quash Plaintiff’s requested subpoena for Defendant to appear is not the same as Ordering Defendant to Appear, especially in this case, where the judge specifically wrote, Defendant had merely failed to cite to any sound legal reason the subpoena should not be allowed.
Some readers required further clarification of the true meaning of the court’s latest action in GA.
The GA election code requires that only candidates qualified for the job may have the state print their names on the ballot. The law allows citizens to contest the eligibility of candidates to the SoS and then, to an administrative law judge. (In other words, the process addresses whether the administration of the ballot eligibility law has been followed.) The Plaintiffs, represented by Orly, filed a ballot challenge with an administrative law judge arguing Defendant Obama is ineligible to be POTUS. They issued a subpoena – remember, this is the document they downloaded off the GA court web site but then ‘indicated’ was actually issued by the court – to Defendant Obama, requiring him to appear and answer questions. Under normal circumstances, if a Defendant served by Plaintiff with a subpoena, refuses to comply with the request; the Plaintiff may then ask the court to sign an Order compelling whatever the subpoena requires. Obama’s local (GA) attorney received the subpoena and submitted to the court a Motion to Quash, thereby asking the court not to allow Plaintiff’s subpoena. If granted, this would mean, Orly could not in the future compel such compliance. Orly awaited the judge’s ruling on Defendant’s motion, taking no further action, such as filing an Opposition to Defendant’s Motion to Quash; to advance her position. The judge ruled to reject Defendant’s motion on the narrow specific grounds that he had failed to provide sufficient (read, any) legal precedent or citations to support his motion. (Thus, in effect, by doing absolutely nothing, Orly succeeded for the first time in getting a ‘court’ ruling prolonging her case instead of ending it on the spot.) (UPDATE 01.22.12: I have now found an Opposition to Motion to Quash, dated January 19. However, I find no evidence this was either received or considered by the ALJ before he Denied Defendant’s Motion; and the Denial fails to mention or address Plaintiff’s Opposition.)
In other words, this administrative law procedure is several steps away from producing an Order to appear, Orly’s misrepresentations and cyberspace victory dance – “I won!!! I won!!!” – notwithstanding.
I pointed out to another commenter that considering both law and circumstances; a ballot challenge in SC likely would have had a far greater chance at success.
I absolutely agree, a correctly framed ballot challenge can be successful. But SC would have been the easiest state in which to launch such a challenge. As I have been writing for a couple of years now, primary candidates in that state are submitted to the election commission by the state party, which also certifies explicitly, in writing, the candidates are qualified for the job. In other words, there, the question to the court would have been, the party has failed to provide a basis for such certification. (Recall that, in 2008, the then party treasurer hand-delivered the primary names to the election commission, which refused to accept the list because it lacked that certification. So, she whipped out her pen and, on the spot, certified the candidates’ qualification!) http://jbjd.org/2009/10/10/if-it-looks-like-a-duck/
P.S. It’s still not too late to question the submission of his name as the D party nominee, to the general election ballot in that state!
But what really bothers me about Orly’s polemics is perhaps best represented by this comment from someone who I believe even at this point genuinely retains faith in her motives.
I am composing a special letter to all the VFW posts in our state, as well as other states making all of this known and the most recent progress of Orly. Hopefully some of them will see fit to make contributions. I have provided both her California postal address,and her website as well. Lets see what our vets think!
This intentional marketing of Orly’s defective work product, especially to veterans, prompted my more personalized response.
You just don’t get it.
The vet who contacted me had been trying to get Orly to destroy the representation agreement he had signed to become a Plaintiff in the military complaint she intended to file. Having re-read the language of her agreement, he realized, he opposed the extreme sentiments she had expressed and was quite concerned that by signing that agreement, he was exposing himself to serious legal (read, criminal) liability. Of course, he was absolutely right to be afraid. In fact, I had already objected to the wording in her release. Leo also urged her to recall that release on the grounds of this inflammatory language. Further, I had urged that only National Guard troops subject to recall, join any lawsuit, because until called up, they were not subject to the UCMJ (Uniform Code of Military Justice) and could not be disciplined for questioning Obama’s Constitutional eligibility. She chose to use other Plaintiffs. (She and I seldom agreed on anything.) Anyway, frustrated that he had been unable to get her to destroy his previous signed agreement; he asked for my help getting through to her. I contacted her; and she quite flippantly and, with an air of disgust, replied, ‘What does he want now?’ I hit the roof. He was the Plaintiff, not her; and he was the member of the military her words had placed in jeopardy. I got her to pull his release; and that’s the last time we collaborated on anything.
That you would solicit money for this charlatan evidences a blind faith not sustained by the record.
Perhaps not surprisingly, mimicking the response of so many of Orly’s acolytes, he became angry at reading the truth and then, directed his anger at me because I wrote it.
UPDATE 01.23.12: I found this comment posted 3 years ago, on another blog; supporting my claims that I assisted a veteran in withdrawing the problematic release he had signed to become a named Plaintiff in Orly’s version of my military complaint.
daddynoz said…
Arlen, I failed to previously identify the individual I have been conferring with regarding my concerns and intent to rectify the current constitutional crisis. The fellow’s name is “jbjd” (unfortunately I do not know his actual name). He has helped me as if he were my priest or bartender; he’s listened to my reservations regarding potentionally seditious or disloyal language found in a related complaint, addressed my questions of what the actual standing was (while considering what I thought it might be), and looked out for my welfare related to possible repercussions from military authorities.
Today, I received this email from the Roemer in 2012 campaign, which I am passing on to you with the hope that, you will take the time to check out this candidate, who has earned my vote.
Team,
We are marching forward. It is as simple as that. We may not have the K Street or Wall Street money behind us, but we have the people behind us. We are working toward a new kind of politics. A kind of politics that isn’t divisive or about who raises the most amount of money. As Governor Roemer has stated many times, “He hates American politics but loves America.” By working together and saying NO to the special interest money, we can get America on the right track again. Below are a few updates.
Governor Roemer will be hosting an online Town Hall at the Yowie HQ in California this Friday at 4:00pm PT. Please spread this link to all your family and friends: http://www.yowie.com/videochat/5mo-buddy-roemer
Governor Roemer will be a guest this Friday on Real Time with Bill Maher. Since it’s on HBO, anything can happen so expect Buddy to call out the other candidates by name and expose their ties to the special interests.
As you know, our campaign depends a lot on having a free and open internet. Congress is threatening this with two overreaching bills commonly known as Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA). We will be joining Wikipedia, Reddit, and others tomorrow in protest of these bills by turning our website, Facebook, Twitter and other social medial platforms off. Please join the cause and tell Congress to stop restricting our freedoms!
Thank you,
Carlos Sierra
Campaign Manager
P.S. We need help organizing our campaign in all 50 states. If you are interested in helping on the ground or online, please send an email with your contact information to info@buddyroemer.com.
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Freedom isn't free. Both the quantity of work hours I am able to dedicate to the "jbjd" blog; and the quality of the legal research required to produce a sound product; are a function of the sum of financial donations from my readers. So, please, help me help you.
Thank you.
(2010) MODEL CITIZEN COMPLAINTS of ELECTION FRAUD to STATE ATTORNEYS GENERAL in APPLICABLE STATES
An "applicable state" for a complaint of election fraud is a state with a law saying, only candidates eligible for office may have their names printed on the ballot. In states that require ballot eligibility, swearing a candidate is eligible without ascertaining beforehand this is true, is election fraud.
In 2010, citizens of several of these states - 6 (six) so far - who believed that in 2008, people swore to their state election officials Barack Obama was qualified to have the state print his name on the ballot but failed to ascertain in advance he is a NBC, reported the crime of election fraud to their state A'sG and requested an investigation.
I will be posting new citizen complaints to state A'sG, in selected states, for 2012.
How did we find these 6 (six) states? Citizens looked up their state laws. Simple as that. When they had questions, they came back and asked. Once we confirmed an applicable state, citizens in that state needed to obtain the Certification documents submitted to election officials in the 2008 election so that we could determine who had signed the eligibility Certifications in that state. Then, citizens asked those signatories, on what documentary basis did you ascertain Obama was a NBC? With no response forthcoming, I now knew whom to name in the complaint.
More than these 6 (six) states were applicable for citizen complaints of election fraud in 2008. For example, we already know that AL is an applicable state. But for some reason, no citizen from that state came forward to initiate the process to generate a complaint. And, more states might have enacted candidate ballot eligibility laws since then.
If Barack Obama is put forward as the D Presidential candidate in 2012; and citizens in states with candidate ballot eligibility laws believe he is not qualified for the job; then new citizen complaints of election fraud need to be drafted in 2012.
Finally, let me emphasize, while you are free to download any documents which appear on this blog, including these state-specific citizen complaints and affix your name and address to send to your AG; the labor and intellectual capital that created this work is mine.
What is copyright? Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.
What does copyright protect? Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."
When is my work protected? Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
http://www.copyright.gov/title17/circ92.pdf
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