Georgia Rules for Obama

On February 7, Georgia's Secretary of State Brian Kemp adopted Judge Malihi's final decision on the ballot challenges -- Obama's name will appear on the Georgia 2012 ballot.

A few hours before Secretary Kemp issued that decision, one of the attorneys representing one of the three challenges, J. Mark Hatfield, had sent a letter to Kemp, highlighting "several significant flaws" in Judge Malihi's findings and conclusions.

Hatfield first pointed out that the judge issued a single decision even though the three challenges had been ordered severed.  In addition, Hatfield noted that his clients "did not enter into evidence any copy of Obama's purported birth certificate" or anything that would establish the date or location of Obama's birth, yet Judge Malihi found as "facts" that Obama was born in the U.S. and that his mother was a U.S. citizen at the time of Obama's birth.

A "Notice to Produce" had been timely served by Hatfield; however, Obama's attorney, Michael Jablonski, simply ignored it, and Judge Malihi failed to acknowledge it in his decision.  Interestingly, according to Hatfield, Jablonski attempted to "back-door" electronic images of Obama's long- and short-form birth certificates into the record by attaching them to the infamous letter of defiance to Kemp on January 25, against Georgia's rules of evidence.

Hatfield also noted that the judge failed to rule on the "Motion for Determination for Placement of Burden of Proof" and that apparently, in the pre-hearing conference in the judge's chambers, "the judge did indicate ... that Obama probably carried the burden of proof in these proceedings."

Further, Hatfield argued that since Obama did not satisfy the burden of proof, combined with the deliberate failure of both Obama and his attorney to appear, which "constituted an event of default," the judge should have sustained the Plaintiffs' challenges.

After highlighting Judge Malihi's curious adoption of the "non-binding reasoning" of an Indiana Court of Appeals decision instead of the U.S. Supreme Court holding in Minor v. Happersett as representing a "fundamental error," Hatfield also noted that the judge failed to "even acknowledge the existence of the Plaintiffs' Citation for Contempt in his final ruling."

Hatfield summed up his request to Kemp by asking that he "render a decision ... that treats Defendant Obama no different than any other candidate seeking access to the Georgia ballot who fails and refuses to present evidence of his or her qualifications for holding office and who disregards the authority of our judiciary."

We can only wonder, if this case would have been about any other candidate or any other subject matter, if others in the legal profession would have noticed what seems to be a blatant disrespect of the law by Obama and his attorney, and further, one completely overlooked by the judge.  Would the mainstream media have covered it?  The plaintiffs were simply following Georgia law, regardless of one's opinion on the eligibility debate.

A law professor I spoke with felt that an administrative judge is likely not "entitled to order a high federal official to drop all he's doing and come to Georgia for a hearing."  But it is interesting to note that Obama's attorney filed motions to dismiss the challenges and then to quash the subpoena, both of which were denied by Judge Malihi.  And the judge, in his denial to quash, seemed to leave open the possibility, if only Jablonski had cited some legal authority.  But instead of respectfully responding under appropriate legal procedure, Jablonski sent a letter, over the judge's head, straight to the secretary of state.

Apparently the judge didn't mind.  And the secretary of state got the message.

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