Georgia Obama Ballot Challenge Hearing Tomorrow; Fox 5 Atlanta Video; Kemp Admonishes Jablonski

Lots of late-breaking news happening down here in the great State of Georgia.

From the top: will be hosting a live feed of the hearings tomorrow. I’d recommend using Internet Explorer to view the Windows Media Player plugin.

Next, it must be freakin’ for real, as the following video (via from Fox 5 Atlanta, demonstrates. They’re merely the latest of local media stations reporting that Obama’s being required to show up for this thing: is reporting that the hearing will be held in a different location than previously reported. That location is 230 Peachtree Street NW, Suite 850, Atlanta, GA. Word on the electronic street is that the change was due to accommodating escalated interest in the case.

But it gets better.

Today, Obama’s Georgia attorney assigned to the challenges, Michael Jablonski, wrote the following letter to Georgia’s Secretary of State, Brian Kemp, essentially asking him to cancel the hearing (money lines emphasized):

January 25, 2012

Hon. Brian P. Kemp
Georgia Secretary of State
214 State Capitol Atlanta, Georgia 30334
via email to Vincent R. Russo Jr., Esq.

Re: Georgia Presidential Preference Primary Hearings

Dear Secretary Kemp:
This is to advise you of serious problems that have developed in the conduct of the hearings pending before the Office of State Administrative Hearings. At issue in these hearings are challenges that allege that President Obama is not eligible to hold or run for re-election to his office, on the now wholly discredited theory that he does not meet the citizenship requirements. As you know, such allegations have been the subject of numerous judicial proceedings around the country, all of which have concluded that they were baseless and, in some instances – including in the State of Georgia – that those bringing the challenges have engaged in sanctionable abuse of our legal process.
Nonetheless, the Administrative Law Judge has exercised no control whatsoever over this proceeding, and it threatens to degenerate into a pure forum for political posturing to the detriment of the reputation of the State and your Office. Rather than bring this matter to a rapid conclusion, the ALJ has insisted on agreeing to a day of hearings, and on the full participation of the President in his capacity as a candidate. Only last week, he denied a Motion to Quash a subpoena he approved on the request of plaintiff’s counsel for the personal appearance of the President at the hearing, now scheduled for January 26.
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.
It is well established that there is no legitimate issue here—a conclusion validated time and again by courts around the country. The State of Hawaii produced official records documenting birth there; the President made documents available to the general public by placing them on his website. “Under the United States Constitution, a public record of a state is required to be given ‘full faith and credit’ by all other states in the country. Even if a state were to require its election officials for the first time ever to receive a ‘birth certificate’ as a requirement for a federal candidate’s ballot placement, a document certified by another state, such as a ‘short form’ birth certificate, or the certified long form, would be required to be accepted by all states under the ‘full faith and credit’ clause of the United States Constitution.” Maskell, “Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement,” Congressional Research Service (November 14, 2011), p.41.
Nonetheless, the ALJ has decided, for whatever reason, to lend assistance through his office—and by extension, yours—to the political and legally groundless tactics of the plaintiffs. One of the attorneys for the plaintiffs has downloaded form subpoenas which she tried to serve around the country. Plaintiff’s attorney sent subpoenas seeking to force attendance by an office machine salesman in Seattle; seeking to force the United States Attorney to bring an unnamed “Custodian of Records Department of Homeland Security” to attend the hearing with immunization records; and asking the same U.S. Attorney to bring the same records allegedly possessed by “Custodian of Records of U.S. Citizenship and Immigration Services.” She served subpoenas attempting to compel the production of documents and the attendance of Susan Daniels and John Daniels, both apparently out of state witnesses, regarding Social Security records. She is seeking to compel the Director of Health for the State of Hawaii to bring to Atlanta the “original typewritten 1961 birth certificate #10641 for Barack Obama, II, issued 08.08.1961 by Dr. David Sinclair…,” even though Hawaii courts had dismissed with prejudice the last attempt to force release of confidential records on November 9, 2011. Taitz v. Fuddy, CA No. 11-1-1731-08 RAN.
In Rhodes v. McDonald, 670 F. Supp. 2d 1363, 1365 (USDC MD GA, 2009), Judge Clay Land wrote this of plaintiff’s attorney:
When a lawyer files complaints and motions without a reasonable basis for believing that they are supported by existing law or a modification or extension of existing law, that lawyer abuses her privilege to practice law. When a lawyer uses the courts as a platform for political agenda disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to practice law….
As a national leader in the so-called ‘birther movement,’ Plaintiff’s counsel has attempted to use litigation to provide the ‘legal foundation’ for her political agenda. She seeks to use the Court’s power to compel discovery in her efforts force the President to produce a ‘birth certificate’ that is satisfactory to herself and her followers.” 670 F. Supp. 2d at 1366.
All issues were presented to your hearing officer—the clear-cut decision to be on the merits, and the flagrantly unethical and unprofessional conduct of counsel—and he has allowed the plaintiffs’ counsel to run amok. He has not even addressed these issues—choosing to ignore them. Perhaps he is aware that there is no credible response; perhaps he appreciates that the very demand made of his office—that it address constitutional issues—is by law not within its authority. See, for example, Flint River Mills v. Henry, 234 Ga. 385, 216 S.E.2d 895 (1975); Ga. Comp. R. & Regs. r. 616-1-2-.22(3).
The Secretary of State should withdraw the hearing request as being improvidently issued. A referring agency may withdraw the request at any time. Ga. Comp. R. & Regs. r. 616-1-2-.17(1). Indeed, regardless of the collapse of proceedings before the ALJ, the original hearing request was defective as a matter of law. Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373. (“The Secretary of State of Georgia is not given any authority that is discretionary nor any that is mandatory to refuse to allow someone to be listed as a candidate for President by a political party because she believes that the candidate might not be qualified.”) Similarly, no law gives the Secretary of State authority to determine the qualifications of someone named by a political party to be on the Presidential Preference Primary ballot. Your duty is determined by the statutory requirement that the Executive Committee of a political party name presidential preference primary candidates. O.C.G.A. § 21-2-193. Consequently, the attempt to hold hearings on qualifications which you may not enforce is ultra vires.
We await your taking the requested action, and as we do so, we will, of course, suspend further participation in these proceedings, including the hearing scheduled for January 26.
Very truly yours,
Georgia State Bar Number 385850
Attorney for President Barack Obama

cc: Hon. Michael Malihi (c/o Kim Beal)
Van Irion, Esq.
Orly Taitz, Esq.
Mark Hatfield, Esq.
Vincent R. Russo Jr., Esq.
Stefan Ritter, Esq.
Ann Brumbaugh, Esq.
Darcy Coty, Esq.
Andrew B. Flake, Esq.

The above represents the metaphorical equivalent of a slow ball thrown directly over home plate that CNN’s John King threw at Newt Gingrich in the last CNN debate.

Because… SoS Brian Kemp hits this ball way out of the park (and I’ll help to explain why, below, with money lines emphasized):

The Office of Secretary of State

January 25, 2012

Michael Jablonski
260 Brighton Road, NE
Atlanta, Georgia 30309

RE: Georgia Presidential Preference Primary Hearings

Dear Mr. Jablonski:
I received your letter expressing your concerns with the manner in which the Office of State Administrative Hearings (“OSAH”) has handled the candidate challenges involving your client and advising me that you and your client will “suspend” participation in the administrative proceeding. While I regret that you do not feel that the proceedings are appropriate, my referral of this matter to an administrative law judge at OSAH was in keeping with Georgia law, and specifically O.C.G.A. § 21-2-5. As you are aware, OSAH Rule 616-1-2-.17 cited in your letter only applies to parties to a hearing. As the referring agency, the Secretary of State’s Office is not a party to the candidate challenge hearings scheduled for tomorrow. To the extent a request to withdraw the case referral is procedurally available, I do not believe such a request would be judicious given the hearing is set for tomorrow morning. In following the procedures set forth in the Georgia Election Code, I expect the administrative law judge to report his findings to me after his full consideration of the evidence and law. Upon receipt of the report, I will fully and fairly review the entire record and initial decision of the administrative law judge. Anything you and your client place in the record in response to the challenge will be beneficial to my review of the initial decision; however, if you and your client choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril. I certainly appreciate you contacting me about your concerns, and thank you for your attention to this matter.
Brian P. Kemp

cc: Hon. Michael Malihi (c/o Kim Beal)
Van Irion, Esq.
Orly Taitz, Esq.
Mark Hatfield, Esq.
Stefan Ritter, Esq.
Ann Brumbaugh, Esq.

Dude. Mike. Seriously epic fail.

First of all, you go on and on complaining about how basically unfair it is to actually have the President answer some simple questions regarding his eligibility, when the time is — what’s that legal term, again? — “ripe” at this moment of this presidential campaign! Then, you’re going to go about thrashing Dr. Taitz because, while certainly not the most conservative-acting individual on the planet, she actually gives a damn about American politics and has thrown everything she’s capable of throwing in hopes of holding Obama accountable. This activity does not me that she has no right to represent clients in an impending hearing.

Then, you suggest that since unverified documents are located on private web servers or under legitimate care by the HI DoH that this knowledge, per se, should be enough to convince anyone that Obama is eligible. What you fail to see is that no State is currently in possession of any sort of documentation — except for a self-ascribing certification that, theoretically, anyone could fraudulently sign — that proves Obama’s eligibility.

Finally, you suggest that the Secretary of State in Georgia — being one such State-level officer of several States — does not have the authority to regulate how federal or State elections are to be held, specifically being able to confirm candidates that office receives from political parties. I’ve already commented about this previously. Suffice it to say that the Constitution itself stipulates that it is the States — not the Congress, not the Courts, and not the Executive — that control the process of elections.

Therefore, you have no legal basis upon which you can say that Mr. Kemp is not following Georgia statute, even if that inconveniences your client, Obama. Georgia statute specifically stipulates that Mr. Kemp must follow the very process that is occurring; he’s not doing it out of political will, in other words.

But I know why Mr. Jablonski is doing this. He is attempting to set up a case that is allowable in Georgia statute — maybe “…In excess of the statutory authority of the Secretary of State” or “…Arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.” (see my analysis of the actual statute for this and its other language) — in order to prepare for an appeal to the State Supreme Court which, in theory, he does have the right to do.

The only problem with this tactic — if this is the goal of the Defendant — is that it applies only to how Judge Malihi could rule; regardless, Mr. Jablonski could still try to make use of these perceived grievances as a means to avoid the issue.

I am getting the distinct sense that this really could be for real. What I mean by this is that, for the first time, either Obama or his representation is going to be made to substantiate his eligibility, all because Georgia statute allows for the common man (or woman!) to challenge any candidate regarding their qualifications, and it has to be considered.

As I’ve consistently said since the end of 2008 — I hope the President can prove that he is eligible, because I don’t know that he is. You’d think that’d be such a simple thing to show. But then again, why all the tomfoolery? Why not just delegate a representative to formally produce evidence for the Georgia ballot and be done with it?

It’s because Barack Hussein Obama has something to hide, and it’s going to be like pulling the rock of Gibraltar to get him to show whatever it is that seems to be so terrible to show.

(I’m only using Occam’s Razor, ya’know: the simplest explanation tends to be the likeliest one 🙂 )


phil [at] therightsideoflife [dot] com

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