OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA CARL SWENSSON, Plaintiff V.

BARACK OBAMA, Defendant

*

DOCKET NO.: OSAH-SECSTATE-CE1216218-60-MALIHI

* *

OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA KEVIN RICHARD POWELL, Plaintiff V. BARACK OBAMA, Defendant PLAINTIFFS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW DOCKET NO.: OSAH-SECSTATE-CE1216823-60-MALIHI

Plaintiffs Carl Swensson and Kevin Richard Powell each filed with the Georgia Secretary of State a challenge to the qualifications of Defendant Barack Obama to appear on the voting ballot in Georgia as a candidate for the Presidency of the United States. Plaintiffs' challenges contend that Defendant Obama does not meet the "natural born Citizen" requirement of Article II,

Page -1-

Section 1, Clause 5 of the United States Constitution regarding eligibility for the presidency. Pursuant to Georgia law, the Office of the Secretary of State referred Plaintiffs' challenges to this Court for hearings. Pursuant to motion of both Plaintiffs, the cases of Plaintiffs Swensson and Powell were consolidated for hearing and decision. Pursuant to proper notice to all parties, the Court conducted a hearing on January 26, 2012. Plaintiffs were present at trial and submitted into the record, through counsel, evidence and testimony pertaining to the issues herein. Defendant Obama and his attorney, however, did not appear for trial and failed to submit any evidence or testimony whatsoever. Pursuant to the motion of counsel for Plaintiffs, the record was closed at the conclusion of trial. The Court now makes the following Findings of Fact and Conclusions of Law in these matters:
FINDINGS OF FACT

1.

Plaintiff Carl Swensson is a natural person residing in

Clayton County, Georgia. He is a registered voter in the State of Georgia, and he is an elector eligible to vote for candidates for the Presidency of the United States, including presidential candidate Barack Obama, the Defendant herein. 2. Pursuant to 0.C.G.A. 21-2-5(b), Plaintiff Swensson

timely filed with the Georgia Secretary of State a written

Page -2-

challenge to the qualifications of Defendant Obama to seek and hold the Office of the Presidency of the United States. Plaintiff Swensson contends that Defendant Obama does not meet the "natural born Citizen" eligibility requirement of Article II, Section I, Clause 5 of the United States Constitution. 3. Plaintiff Kevin Richard Powell is a natural person

residing in Gwinnett County, Georgia. He is a registered voter in the State of Georgia, and he is an elector eligible to vote for candidates for the Presidency of the United States, including presidential candidate Barack Obama, the Defendant herein. 4. Pursuant to O.C.G.A. 21-2-5(b), Plaintiff Powell

timely filed with the Georgia Secretary of State a written challenge to the qualifications of Defendant Obama to seek and hold the Office of the Presidency of the United States. Plaintiff Powell contends that Defendant Obama does not meet the "natural born Citizen" eligibility requirement of Article II, Section I, Clause 5 of the United States Constitution. 5. Defendant Barack Hussein Obama II (hereinafter "Barack

Obama"), on or before October 31, 2011, submitted a letter to the Executive Committee of the Democratic Party of Georgia seeking to be listed on the Georgia Democratic Presidential Preference Primary Ballot. Consequently, on November 1, 2011, Georgia Democratic Party Chairman Mike Berlon submitted, pursuant to 0.C.G.A. 21-2-193, the name of Defendant Obama to the Georgia

Page -3-

Secretary of State's Office as a candidate to be listed on the Georgia Democratic Presidential Preference Primary Ballot. 6. Defendant Barack Obama was born on August 4, 1961.

Defendant's natural and legal mother was Stanley Ann D. Obama, and Defendant's natural and legal father was Barack Hussein Obama. 7. Defendant's aforesaid father, Barack Hussein Obama, was

born in Kenya and was a subject of Great Britain. Moreover, Defendant's aforesaid father, Barack Hussein Obama, was not a citizen of the United States as of the date of birth of Defendant Obama in 1961 or at any other time whatsoever. 8. Despite being timely served with a Notice to Produce by

Plaintiffs' counsel requiring Defendant to personally appear for trial and to bring with him certain documents for use as evidence by Plaintiffs at trial, Defendant Obama failed to appear for the trial of these matters on January 26, 2012. Likewise, Defendant's attorney also failed to appear for trial. No evidence or testimony was introduced into the record by or on behalf of Defendant Obama at trial. The Court closed the record at the conclusion of the January 26, 2012 trial. 9. The failure of Defendant Obama and defense counsel to

appear for trial on January 26, 2012 was knowing and intentional, as demonstrated by Plaintiffs' Exhibit 12, a January 25, 2012

Page -4-

letter written by defense counsel to Georgia Secretary of State Brian Kemp. CONCLUSIONS OF LAW 1. Defendant Barack Obama, having initiated the submission

of his name as a candidate to be listed on the Georgia Democratic Presidential Preference Primary Ballot, is subject to the jurisdiction of the Georgia Secretary of State and this Court in the above-captioned proceedings for the purpose of determining Defendant's qualifications to seek and hold the public office for which he is offering. O.C.G.A. 21-2-5. 2. Pursuant to O.C.G.A. 21-2-5(a), "[e]very candidate

for federal...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." 3. Article II, Section I, Clause 5 of the United States

Constitution, concerning "[e]ligibility for office of President," provides in pertinent part that "[n]o Person except a natural born Citizen...shall be eligible to the Office of President...." 4. The burden of proof rests entirely upon Defendant Obama

"to affirmatively establish his eligibility for office." See

Haynes v. Wells, 273 Ga. 106, 108-109, 538 S.E. 2d 430, 433
(2000). Plaintiffs are not required "to disprove anything

Page -5-

regarding [Defendant Obama's] eligibility to run for office...." Id. 5. Because Defendant Obama, as well as his attorney,

failed to present into the record at trial any evidence or testimony whatsoever concerning Defendant's eligibility for office, the Court finds that Defendant has failed to carry the burden of proof in affirmatively establishing his eligibility for office, and Plaintiffs' challenges herein should be sustained on that basis. 6. Further, inasmuch as OSAH Rule 616-1-2-.30 ("Default.

Amended.") provides in pertinent part that "[a] default order may be entered against a party that fails to participate in any stage of a proceeding," and in view of the deliberate failure of Defendant Obama and defense counsel to appear for trial on January 26, 2012, the Court finds Defendant in default on the issue of Defendant's qualifications and eligibility for office pursuant to the "natural born Citizen" requirement of Article II, Section I, Clause 5 of the United States Constitution. Consequently, the Court finds that Plaintiffs' challenges herein should be sustained on the additional, separate, and independent basis of Defendant's default. 7. Notwithstanding the foregoing bases for finding that

Plaintiffs' challenges herein should be sustained, the Court finds that Plaintiffs Swensson and Powell, through counsel, did

Page -6-

introduce into the record evidence and testimony pertaining to the merits of the issue of Defendant Obama's eligibility for office pursuant to the "natural born Citizen" requirement of Article II, Section I, Clause 5 of the United States Constitution. Plaintiffs' evidence established that Defendant's father, Barack Hussein Obama, was born in Kenya and was a subject of Great Britain. Additionally, Plaintiffs established that Defendant's aforesaid father, Barack Hussein Obama, was not a citizen of the United States as of the date of birth of Defendant Obama in 1961 or at any other time whatsoever. 8. The United States Supreme Court's decision in Minor v.

Happersett, 88 U.S. 162, 167, 22 L. Ed. 627, 21 Wall. 162 (1875),

is binding authority for the proposition that the Article II phrase "natural born Citizen" refers to a person born in the United States to two (2) parents who were then (at the time of the child's birth) themselves United States citizens. 9. Applying the aforesaid rule of Minor v. Happersett in

the instant cases, the Court concludes that Defendant Obama does not meet the Article II "natural born Citizen" requirement for the presidency, as Defendant Obama's father was not a United States citizen at the time of Defendant's birth. Defendant Obama is therefore ineligible for the office he seeks, and the Court finds that Plaintiffs' challenges herein should be sustained on their merits, notwithstanding the Court's previous conclusions in

Page -7-

paragraphs 5 and 6 above that the Plaintiffs are entitled to judgment based upon the separate issues of burden of proof and default, respectively. CONCLUSION AND REPORT TO THE SECRETARY OF STATE For the foregoing reasons, the Court concludes and hereby reports to the Secretary of State that Plaintiffs' challenges to the qualifications of Defendant Barack Obama should be sustained and upheld; that Defendant Barack Obama is not entitled to appear on the primary or general election ballots in the State of Georgia as a candidate for the Office of the President of the United States; and that Defendant Barack Obama's name should be withheld from the presidential ballot or, if the ballots have been printed, should be stricken from the presidential ballot. This day of , 2012_

Michael M. Malihi Administrative Law Judge

Page -8-

CERTIFICATE OF SERVICE

I, J. Mark Hatfield, Attorney for Plaintiffs, do hereby certify that, pursuant to the Order entered in the abovecaptioned matters regarding electronic service, I have this day served the foregoing Plaintiffs' Proposed Findings of Fact and Conclusions of Law upon: Michael Jablonski michael.jablonski@comcast.net by email addressed thereto in order to insure proper delivery. This 1st day of February, 2012. HATFIELD & HATFIELD, P.C.

J ark Hatfi Att ney for Georgia Bar No 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820

ntiffs 37509