IT WAS A GOOD TIME; IT WAS THE BEST TIME; IT WAS A PARTY

January 28, 2012

©2012 jbjd

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 a proceeding, a party that fails to file any required pleading, or a party that fails to comply with an order 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 defaulting party’s continued participation in the proceeding. After issuing a default order, the Administrative Law Judge shall proceed as necessary to resolve the case without the participation of the defaulting party, or with such limited participation as the Administrative Law Judge deems appropriate, and shall determine all issues in the proceeding, including those affecting 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, the Administrative Law Judge may proceed with the hearing in the absence of the party unless the absent party is the party who requested the hearing, in which case the Administrative Law Judge may dismiss the action. Failure of a party to appear at the time set for hearing shall constitute a failure 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.”

http://www.osah.ga.gov/#

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.

View this document on Scribd

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.)

View this document on Scribd

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.

View this document on Scribd

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.

View this document on Scribd

(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.

http://www.osah.ga.gov/documents/procedures/administrative-rules-osah.pdf

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.

That’s my analysis, for what it’s worth.

…………………………………………………………………………………………………………………………………………………………….

Freedom costs.

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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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