Welden v Obama (SCOGA) - 2012-03-07 - Welden Application for Review (filed Mar. 7, 2012)

8/2/2019 Welden v Obama (SCOGA) - 2012-03-07 - Welden Application for Review (filed Mar. 7, 2012)

1/21

1

Docket Number:

------------------------

SUPREME COURT OF GEORGIA

------------------------

DAVID P. WELDEN

Petitioner

v.

BARACK OBAMA

Respondent

------------------------

APPLICATION FOR REVIEW

From the Superior Court of Georgia for the County of Fulton, Docket number

2012CV211537, Reviewing the decision of the Georgia Office of State

Administrative Hearings Docket number 1215137-60

------------------------

Van R. Irion

TN Bar No. 024519

Liberty Legal Foundation

9040 Executive Park Dr., Ste. 200

Knoxville, TN 37923

(423) 208-9953

[email protected]

Attorney for Petitioner
mailto:[email protected]:[email protected]:[email protected]


2/21

2

TABLE OF CONTENTS

Page

Table of Contents 2

Table of Authorities 3-4

Enumeration of Errors 5

Statement of Jurisdiction 6

Judgment Being Appealed 6

Background 6

Memorandum of Law 8

I. Establishment of Precedent is Desirable 8II. Reversible Error Exists 8III. Superior Court Erred in Finding that 21-2-5 Doesnt 8

Apply to Presidential Primaries

IV. Superior Court Erred in Finding Georgia Election Code 11Violates U.S. Constitution

V. Superior Court Erred in FindingService Not Perfected 15VI. Secretary of State Erred in Finding Natural Born 17

Citizen Under Article II of the U.S. Constitution Includes

All Persons Born on U.S. Soil Without Regard to the

Citizenship of Their Parents

Conclusion 20

Certificate of Service 21


3/21

3

TABLE OF AUTHORITIES

Cases Page

Arkeny v. Governor, 18

916 N.E.2d 678 (Ind.Ct.App. 2009)

Asphalt Co. v. Georgia Public Service Commission, 15

263 Ga.App. 711 (2003)

Belluso v. Poythress, 11, 12

485 F.Supp. 904 (N.D.Ga. 1980)

Democratic Party of U.S. v. Wisconsin, 11, 12

450 U.S. 107 (1981)

Duke v. Cleland, 11, 12

954 F.2d 1526 (11th

Cir. 1992)

General Motors Acceptance Corp. v. United States, 18

286 U.S. 49 (1932)

Hendersons Tobacco, 17

78 U.S. 652 (1870)

Marbury v. Madison, 17

5 U.S. 137 (1805)

Minor v. Happersett, 18, 19

88 U.S. 162 (1874)

Morton v. Mancari, 17

417 U.S. 535 (1974)

United States v. Borden Co., 17308 U.S. 188 (1939)

United States v. Tynen, 17

78 U.S. 88 (1870)


4/21

4

TABLE OF AUTHORITIES

Cases (Cont.) Page

Wong Kim Ark, 19

169 U.S. 649 (1898).

Wood v. United States, 18

41 U.S. 342 (1842)

Statutes

OCGA 5-3-21 15, 16

OCGA 5-6-32 16

OCGA 5-6-35 5-7

OCGA 21-2-5 Passim

OCGA 21-2-15 9

OCGA 21-2-193 10

ConstitutionsGeorgia Constitution, Art. VI, VI, 1 5

U.S. Constitution, Art. II 5-6, 17-19

U.S. Constitution, 14th

Amd. 17-19

U.S. Constitution, 22nd

Amd. 13


5/21

5

ENUMERATION OF ERRORS

Pursuant to OCGA 5-6-35 the Petitioner respectfully asserts that the

following reversible errors are established by the record in the instant case:

1) The Superior Court Erred in finding that OCGA 21-2-5 is notapplicable to Georgia Presidential primaries.

2) The Superior Court erred in finding that Georgia Election Codeviolates the Democratic Partys right to freely associate, as protected by the First

Amendment to the U.S. Constitution.

3) The Superior Court Erred in finding that service was not perfected inthe instant case. Alternatively, that the Superior Court erred in preemptively

dismissing the instant case based upon failure of Petitioners first attempt at service

of process.

4) The Secretary of State erred in finding that the term natural borncitizen, as used in Article IIof the U.S. Constitution, includes all persons born on

U.S. soil without regard to the citizenship of the parents of the person born on U.S.

soil.


6/21

6

STATEMENT OF JURISDICTION

Article VI, VI, II of the Georgia Constitution states: The Supreme Court

shall be a court of review and shall exercise exclusive appellate jurisdiction in the

following cases:...(2) All cases of election contest.

The instant case is an election contest arising from OSGA 21-2-5.

Therefore this Court has exclusive jurisdiction upon review of the Superior Courts

final judgment.

JUDGMENT BEING APPEALED

Pursuant to OCGA 5-6-35 copies of the judgment being appealed and

copies of Respondents motion to dismiss and Petitioners opposition to said

motion are attached as exhibits to this petition.

BACKGROUND

Petitioners challenge has consistently alleged only one uncontested fact and

one legal assertion: that the Respondents father was not a U.S. citizen and that

pursuant to U.S. Supreme Court precedent a person must have two U.S. citizen

parents to be a natural born citizen under Article II of the U.S. Constitution.

On November 1, 2011, the Democratic Party of Georgia notified the Georgia

Secretary of State that the only candidate that should appear on the Democratic


7/21

7

Presidential primary ballot would be Barack Obama. Pursuant to O.C.G.A. 21-2-5

the Petitioner filed a timely challenge with the Secretary of State. The challenge

was referred by the Secretary of State to the Office of State Administrative

Hearings (hereinafter OSAH). An evidentiary hearing was held on January 26,

2012. On February 3 the OSAH entered a preliminary judgment holding that any

person born on U.S. soil is a natural born citizen as that term is use in Article II

of the U.S. Constitution, regardless of the citizenship of the persons parents. See

Ex. D at 10. On February 7 the Georgia Secretary of State adopted the ruling of the

OSAH. See Ex. E.

The Petitioner filed a timely appeal with the Superior Court pursuant to

OCGA 21-2-5 on February 10. On February 27 the Respondent filed a motion to

dismiss. See Ex. B. On March 1 the Superior Court notified the Petitioner that the

Court was shortening the time to respond, giving the Petitioner less than 24 hours

to file an opposition. On March 2 the Superior Court granted the Respondents

motion to dismiss. See Ex. A.

However, the Superior Courts grounds for dismissal were different from

those found by the Secretary. Compare Ex. A with Ex. D & E. The Superior Court

held that the Secretary of States application of Georgia Election Code 21-2-5 to

the Presidential Primary was an error of law, and that said application violates the

Democratic Partys Constitutional right to associate. See Ex. A.


8/21

8

MEMORANDUM OF LAW

I. Establishment of Precedent is DesirablePursuant to OCGA 5-6-35 an application for leave to appeal a final

judgment shall be granted when the establishment of a precedent is desirable.

In the instant case the Superior Court disagreed with the OSAH and the

Secretary of State regarding the applicability of OCGA 21-2-5 to Georgia

Presidential primaries. This disagreement between OSAH, the Secretary of State,

and the Superior Court regarding applicability and interpretation of Georgia

election code warrants review by this Court.

II. Reversible Error ExistsOCGA 5-6-35 also establishes that leave to appeal shall be granted when

reversible error appears to exist. For the reasons set forth below, reversible error is

apparent in the instant case.

III. Superior Court Erred in Finding that 21-2-5 Doesnt Apply toPresidential Primaries

OCGA 21-2-5(a) states: Every candidate for federal and state

officeshall meet the constitutional and statutory qualifications for holding the

office being sought. The same chapter states This chapter shall apply to any

general or special election in this state to fill any federal, state, county, or


9/21

9

municipal office, to any general or special primary to nominate candidates for any

such office, and to any federal, state, county, or municipal election or primary for

any other purpose whatsoever, unless otherwise provided. O.C.G.A. 21-2-15

(emphasis added).

The Superior Courts holding that this Code doesnt apply to the Presidential

primary runs contrary to the plain language of the code.

The Superior Courts holding requires an interpretation of law that leaves

Title 21 internally conflicting. The Superior Court reads 21-2-5(a) to mean

Every candidate for federal and state office shall meet the constitutional and

statutory qualifications for holding the office being sought, except candidates for

President. The code doesnt make an exception for Presidential candidates. The

Georgia legislature certainly could have included such an exception if they had

intended such an exception. They didnt include such an exception because they

didnt intend one.

The Superior Courts argument also rests upon an assumption that 21-2-

5(a) addresses elections and not candidates. However, 21-2-5(a) doesnt

contain the word election. It does contain the word candidate. More

specifically, it applies to Everycandidate 21-2-5(a)(emphasis added). Since

the explicit prevails over the implicit, the Every candidate language in 21-2-


10/21

10

5(a) negates the Superior Courts assumption that that section implicitly exempts a

special category of candidates.

For the Superior Courts holding to make sense the Presidential primary

would need to be administered without candidates. However, Georgia Election

code specifically requires the political parties to submit to the Secretary of State a

list of the names of the candidates of such party to appear on the presidential

preference primary ballot. 21-2-193(emphasis added). The list of names

submitted by the parties to the Secretary of State are candidates, in the

Presidential primary.Id. 21-2-5(a) applies to Every candidatefor federal office,

and requires them to be constitutionally qualified to hold such office.Id. Therefore,

21-2-5(a) applies to the list of candidates submitted by political parties under

21-2-193.

Petitioners clear-meaning reading of Georgia Election code leaves the code

in harmony, whereas the Superior Courts holding leaves the word candidate

meaning one thing in one section and meaning something different in another

section. According to the Superior Court in one section the Respondent is a

candidate and in the other section he is not a candidate.

Finally, the Superior Courts holding is grounded upon a conclusion of law

that was fully briefed and rejected by the OSAH. Therefore, this issue requires

review by this Court.


11/21

11

The Superior Courts holding that 21-2-5 does not apply to Presidential

primaries represents reversible error. Therefore this Court should grant the instant

petition.

IV. Superior Court Erred in Finding Georgia Election Code ViolatesU.S. Constitution

The Superior Courts holding that application of 21-2-5 to Presidential

primaries would violate the political parties right to freely associate is not

supported by any precedent and is an error of law.

The right to associate has been interpreted to allow private groups to

determine who will and will not be members of the group. Democratic Party of

U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526 (11th

Cir.

1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, no court

has extended this right beyond the confines of the private organization. A party can

determine who it will include as members. That party can also determine which of

those members will be its candidates. However, nothing in the Constitution or

precedent forces a State to accept a partys selection of candidates for appearance

on a ballot.1

1While right-to-associate precedent has negated some states restrictive laws for

recognizing political parties, these precedent have not forced states to accept all

candidates for appearance on ballots without any screening of such candidates.


12/21

12

Several right-to-associate cases did involve candidates exclusion from

ballots. See Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v.

Cleland, 954 F.2d 1526 (11th

Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904

(N.D.Ga. 1980). However, all of these cases are exactly opposite to the present

situation. All involved political parties excluding a candidate because the party

didnt want to be associated with the candidate. In every case cited the candidate

sued the party and/or state for inclusion on the ballot after being excluded.

There are no cases where a political partys decision to support a candidate

created a Constitutional right to force a State to accept that decision. Such

precedent would place the political partys authority above that of the state. This is

why no such precedent exists.

It is true that some states lack election codes authorizing any state officials

to screen candidate selections from political parties. In these states political parties

have essentially unfettered authority to determine which candidates appear on

ballots. However, these instances represent decisions of the states to not screen

candidates. It is the states right to decide how to administer its elections. The fact

that some states have decided to not protect their citizens from unqualified

candidates does not mean that other states dont have the right to screen

candidates. It simply means that some states have left the screening to the political

parties.


13/21

13

Georgia has determined that it is in the best interest of its citizens to screen

candidates prior to placement on the ballot. See 21-2-5. Right-to-associate

precedent does not prevent Georgia from protecting its citizens in this manner.

The Democratic Party of Georgias Constitutional right to determine its

membership coexists with Georgias right to govern Georgia. Georgia code does

not interfere with the autonomy of the political partys internal decision making

because it does nothing to prohibit the parties from submitting any name to the

Secretary of State for inclusion in the Presidential primary. The political parties are

free to submit Saddam Hussein or Mickey Mouse as their next Presidential

candidate. However, Georgia is not required to accept such submissions and waste

taxpayer money on ballots for such candidates.

After the Superior Courts holding, the political parties could choose to list

former Presidents George Bush and Bill Clinton as candidates for the Presidential

primary, despite the fact that both President Bush and President Clinton are

disqualified to run for that office again by the 22nd

Amendment to the U.S.

Constitution. Upon such listing the State of Georgia would have no choice but to

place these candidates names on its ballots. This result demonstrates the error of

the Superior Courts holding. Contrary to the Superior Courts holding, the

political parties simply do not have unfettered dictatorial authority over the state of

Georgia.


14/21

14

Georgia code does not prevent the political parties from submitting any

name. Instead the code simply determines what the State does with a partys list of

candidates after the party has forwarded its list to the State. See O.C.G.A. 21-2 et

seq. This code does nothing to prevent any political party from excluding, or

including, any person they choose to exclude or include. Nor does it prevent a

party from choosing candidates to submit, in its sole discretion. Georgias code

simply exercises the States right to administer elections in a manner that best

serves the citizens of the State.

In the instant case Georgias Election code does nothing to infringe on the

Democratic Party of Georgias right of association because the Party can and did

include the Respondent in its organization. The Party can and did include the

Respondent in the Partys list of candidates. The Partys rights, however, end there.

Its rights cannot force the State to place the Respondents name on a ballot after

the State determines that the Respondent is obviously not qualified to hold the

office sought. 21-2-5. The rights of the Party and of the State simply do not

conflict.

The Superior Courts holding logically requires a conclusion that no state

can preclude any candidate from any primary ballot for any reason without

violating a political partys right to freely associate. Since many candidates have


15/21

15

been disqualified from primary ballots for lack of qualification to hold the office

sought, we can safely conclude that the Superior Courts holding is an error of law.

V. Superior Court Erred in Finding Service Not PerfectedAs alternative grounds for dismissal the Superior Court found that

Petitioners have failed entirely to perfect personal service upon the Respondent(s)

as required by O.C.G.A. 21-2-5(e) and O.C.G.A. 9-11-4. This Ruling runs

contrary to clear binding precedent.

In 2003 the Georgia Court of Appeals established that when petitioning a

Superior Court for review of a Georgia state administrative decision, service by

mail of the petition, without a case number or summons, upon the parties below

and the administrative agency is sufficient to establish jurisdiction. Douglas

Asphalt Co. v. Georgia Public Service Commission, 263 Ga.App. 711 (2003). In

Douglas the petition for review, alone, was served upon the parties and agency

contemporaneously with the filing of said petition. Id. at 711-12. Therefore, the

petition did not yet have a case number assigned by the clerk or a summons issued.

Yet the Appellate Court established that jurisdiction was established and service

was proper.Id.

The Douglas Court also noted that appeals from an agency decision are

governed by OCGA 5-3-21, which provides in pertinent part that [a] copy of the


16/21

16

notice of appeal shall be served on all parties in the same manner prescribed by

Code Section 5-6-32. OCGA 5-6-32(a), states in relevant part:

Whenever under this article service or giving of any notice is

required or permitted to be made upon a party and the party is

represented by an attorney, the service shall be made upon the

attorney unless service upon the party himself is ordered by the court.

Service of all notices and other papers hereundermay be made by

the attorney or party filing the notice or paper, in person or by mail,

and proof thereof shown by acknowledgement of the attorney or party

served, or by certificate of the attorney, party, or other person

perfecting service.

In the instant case both the Respondents attorney and the Secretary of State

were served by mail with copies of the Petition filed in the Superior Court.

Therefore, the Superior Courts alternate grounds for dismissal constitutes

reversible error of law.

In addition, even if service were considered improper for any reason, OCGA

5-3-21(b) states in relevant part that: [f]ailure to perfect service on any party

shall not work dismissal, but the superior court shall grant continuances and enter

such other orders as may be necessary to permit a just and expeditions

determination of the appeal.

Again, the Superior Courts alternate grounds for dismissal constitutes

reversible error of law.


17/21

17

VI. Secretary of State Erred in Finding Natural Born CitizenUnder Article II of the U.S. Constitution Includes All Persons

Born on U.S. Soil Without Regard to the Citizenship of Their

Parents2

The Secretary of States decision concludes that any person born within the

United States, regardless of the citizenship or legal status of their parents, is a

natural born citizen under Article II of the United States Constitution. This

conclusion runs contrary to common sense, violates venerable rules of

Constitutional Construction followed by the U.S. Supreme Court since its

inception, and violates the explicit holding of the Supreme Court case relied upon

by the Secretary.

The early Supreme Court established the relevant rule of Constitutional

construction inMarbury v. Madison: It cannot be presumed that any clause in the

Constitution is intended to be without effect; and therefore such a construction is

inadmissible. 5 U.S. 137, 174 (1805). This rule is still in effect and a similar rule

is used for statutory construction: When there are two acts upon the same subject,

the rule is to give effect to both if possibleThe intention of the legislature to

repeal must be clear and manifest. United States v. Borden Co., 308 U.S. 188, 198

(1939). See also, Morton v. Mancari, 417 U.S. 535, 551 (1974); United States v.

Tynen, 78 U.S. 88 (1870);Hendersons Tobacco, 78 U.S. 652 657 (1870); General

2This issue will be more fully briefed by the Petitioner upon this Courts grant of

the instant petition.


18/21

18

Motors Acceptance Corp. v. United States, 286 U.S. 49, 61 (1932); Wood v. United

States, 41 U.S. 342, 362-63 (1842).

Had the drafters of the Constitution intended all people born in the U.S. to

be considered natural born citizens, the 14th

Amendment would not have been

necessary. Had the drafters of the 14th

Amendment intended that Amendment to

alter the Article II definition of natural born citizen, they would have clearly stated

so. Yet the term natural born citizen is not found anywhere within the 14th

Amendment. The Amendment also makes no reference to Article II.

Yet the Secretary of States ruling in the instant case leaves Article IIs

natural born citizen clause with no independent meaning separate from the

meaning of citizen under the 14th

Amendment. Citizen simply does not have the

same legal meaning as the term natural born citizen. Article II uses the term

natural born citizen in order to distinguish this type of citizen from other citizens.

Yet the Secretarys holding completely negates this distinction. Therefore, the

Secretarys holding violates venerable rules of Constitutional construction.

Marbury, 5 U.S. at 174.

The Secretarys conclusion compounds this error by ignoring a precedential

holding from the U.S. Supreme Court in favor of dicta from a later Supreme Court

case. The United States Supreme Court defined the term natural born citizen in

Minor v. Happersett. 88 U.S. 162, 167 (1874). The Courts definition of natural


19/21

19

born citizen in Minor was necessary for that Court to reach its holding, and is

therefore binding precedent. In order to reach its holding, theMinorCourt first had

to determine whether Mrs. Minor was a citizen. It explicitly stated as much and

then made the determination by showing that she was a natural born citizen: For

the purposes of this case it is not necessary to solve these doubts. It is sufficient for

everything we have now to consider that all children born of citizen parents within

the jurisdiction are themselves citizens.Id. at 167. Because both of Mrs. Minors

parents were U.S. citizens at the time she was born, and she was born in the U.S.,

she was a natural born citizen.Id. Because all natural born citizens are also within

the broader category citizen, Mrs. Minor was a citizen. This binding precedent

definition of natural born citizen was dismissed by the Secretary in favor of dicta

in a later Supreme Court case. This is an error of law.

The Secretary also reads the words natural born into the very explicit

holding of the Supreme Courts Wong Kim Arkdecision. 169 U.S. 649 (1898). Yet

neither the 14th

Amendment nor the holding of Wong Kim Ark include the term

natural born. The Wong Kim Ark court was determining the meaning of the

broader term citizen under the 14th

Amendment. Id. at 705. Its holding was

explicitly identified as its holding. Id. Its holding was fact-specific. Id. Its holding

neither mentioned Article II nor the term natural born.Id.


20/21

20

This issue was presented at length to the OSAH at oral arguments and in

written submissions, yet the Secretary of State chose to completely ignore this

issue in its decision.

Instead the Secretary of States decision relies upon a non-binding opinion

from an Indiana State Appellate Court to support its conclusion. See Arkeny v.

Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009). The Indiana opinion relied upon

was litigated by pro-se citizens of Indiana against the Governor of that state. Id.

The Indiana court reached its holding via an issue that didnt require interpretation

of the U.S. Constitution, yet that court then proceeded to construe the U.S.

Constitution as an independent means of reaching its holding. Id. at 684-85. The

Indiana courts decision to construe the U.S. Constitution without need to do so

also represents yet another violation of venerable rules of construction and judicial

restraint doctrine. The Secretarys reliance upon the Indiana courts opinion, rather

than follow a precedential holding of the U.S. Supreme Court, demonstrates the

Secretarys error of law on this issue.

CONCLUSION

For the reasons set forth herein, the Petitioner respectfully requests that this

Court grant this Petition for Review.


21/21

21

Respectfully submitted this 7th

day of March, 2012.

_________________________

Van R. Irion

TN Bar No. 024519

Liberty Legal Foundation

9040 Executive Park Dr., Ste. 200

Knoxville, TN 37923

(423) 208-9953

[email protected]


CERTIFICATE OF SERVICE

Pursuant to this Courts Rule 14 I certify that I have served the opposing

parties attorney and the Georgia Secretary of State in this matter with a copy of

Petitioners Petition for Review by sending a copy via first class U.S. mail to

attorney Michael Jablonski at 260 Brighton Rd. NE, Atlanta, GA 30309; and by

sending a copy via first class U.S. mail to attorney Vincent Russo, Jr., at 214 State

Capitol Atlanta, GA. Copies were also sent via e-mail addressed to: Michael

[email protected]; and Vincent [email protected].

This the 7th

day of March, 2012.

_________________________

Van R. Irion

TN Bar No. 024519

Liberty Legal Foundation9040 Executive Park Dr., Ste. 200

Knoxville, TN 37923

(423) 208-9953

[email protected]

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

Welden v Obama (SCOGA) - 2012-03-07 - Welden Application for Review (filed Mar. 7, 2012)

Documents

Transcript of Welden v Obama (SCOGA) - 2012-03-07 - Welden Application for Review (filed Mar. 7, 2012)