MIDNIGHT TRAIN (of THOUGHT) to GEORGIA

January 26, 2012

 ©2012 jbjd

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.)

View this document on Scribd

The most important words are these:

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.

WITNESS FOR ORLY’S PERSECUTION or MUCH ADO ABOUT ABSOLUTELY NOTHING

Then, I read Mr. Jablonski’s letter to Secretary Kemp, withdrawing from these administrative proceedings; and Secretary Kemp’s reply. (H/T nolu chan.)

View this document on Scribd

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.

O.C.G.A. § 50-13-40

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.


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