©2012 jbjd
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 I know 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 predict will happen on Thursday.
Posted by jbjd 
