Georgia Birther Issue Gets New Life

by BOB UNRUH
An administrative law judge in Georgia who held hearings on citizens’ complaints that Barack Obama isn’t eligible to be president and so shouldn’t be on the 2012 presidential ballot in the state failed to follow U.S. Supreme Court precedent, according to one of the attorneys representing clients bringing the complaints.

Georgia Secretary of State Brian Kemp today adopted without elaboration the recommendation from Judge Michael Malihi, who concluded without evidence from Obama that he was born in Hawaii, which makes him native born, which is the same as the “natural born” required by the Constitution of presidents.

ark Hatfield, representing, 
Carl Swensson and Kevin Richard Powell, told WND he had expected Kemp to rubber-stamp whatever Malihi wrote.

He did. His determination today, without mentioning any of the controversy or questions that remain, said he “formally adopts the initial decision of the ALJ.”

Hatfield said the good thing about the decision is that it came quickly, and the attorneys can escalate the arguments to the appellate level now well in advance of the March 6 Super Tuesday primaries, in which Georgia takes part.

He said he wrote to Kemp as the process was developing, outlining several failings on the part of the ALJ, and he confirmed some of those issues now are being prepared for presentation to the appellate level.

“I will be filing that on behalf of Carl Swensson and Kevin Richard Powell just as soon as I can get it drafted,” he told WND.

Citizens raising concerns include David Farrar, Leah Lax, Thomas Malaren and Laurie Roth, represented by Orly Taitz; David Weldon represented by attorney Van R. Irion of Liberty Legal Foundation; and Carl Swensson and Kevin Richard Powell, represented by J. Mark Hatfield. Cody Judy is raising a challenge because he also wants to be on the ballot.

Hatfield’s letter raised a series of issues with Malihi’s ruling. He noted that the cases brought by different plaintiffs had been ordered separated by Malihi, yet he issued only one decision for all of them.

“The adverse impact … is immediately apparent when one reviews certain alleged ‘facts’… Malihi found as ‘fact’: 1) that defendant Obama was born in the United States; and 2) that defendant Obama’s mother was a citizen of the United States at the time of defendant’s birth.”

“A review of the record in my clients’ above-captioned cases reveals no evidence of defendant’s place of birth and no evidence of defendant’s mothers’ citizenship at the time of defendant’s birth,” he wrote. “My clients did not enter into evidence any copy of defendant Obama’s purported birth certificate in these case.”

He noted since Obama and his lawyer “failed to appear” and “failed to submit any evidence,” the determination by Malihi in the cases brought by his clients appears to be unsubstantiated.

Hatfield also explained that Malihi failed to decide the burden of proof.

“The defendant and his lawyer failed to attend trial and failed to offer any evidence, and such failures were intentional … If the defendant did, as plaintiffs contend, bear the burden of proof in these cases, then defendant can in no way be said to have satisfied his burden, and plaintiffs are entitled to judgment.”

He also noted that Malihi based his opinion of an Indiana Court of Appeals ruling from 2009, when, in fact, the U.S. Supreme Court also has spoken on the issue.

While Malihi said he believed Obama was born in the U.S. and that automatically conferred “natural born citizenship” on him, that “is an incorrect statement of the applicable law,” Hatfield said.

“The ruling of the United States Supreme Court in Minor v. Happersett … 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.”

He said since Obama’s father never was a U.S. citizen, Obama junior then is disqualified.

Hatfield also noted that Malihi simply ignored the plaintiffs’ request for a ruling of contempt against Obama for refusing to participate in the court proceedings.

While Georgia procedures allow for a response to such “contemptuous” behavior, “Malihi did not even acknowledge the existence of the plaintiffs’ citation for contempt.”

Malihi said Obama could be on the state’s ballot because he was born in Hawaii, is “native born” and thus also is “natural born” as required by the Constitution.

He cited the little-known determination by an Indiana judge.

“The Indiana court determined that a person qualifies as a natural born citizen if he was born in the United States because he became a United States citizen at birth,” wrote Malihi last week.

“For the purposes of this analysis, this court considered that President Barack Obama was born in the United States. Therefore, as discussed in [the case], he became a citizen at birth and is a natural born citizen.”

Malihi’s decision came without any evidence being presented by Obama or his lawyer after they refused to participate in the required hearing under a state law that mandates all candidates qualify for the office they seek.

The law also allows any voter to raise a challenge, and several did. A hearing was held on their evidence on Jan. 26.

Malihi essentially tossed all of the information the plaintiffs and their attorneys presented.

“The court finds the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative value, and thus wholly insufficient to support plaintiffs’ allegations,” he said.

He was miffed at Obama but decided the case on the merits, as requested by the plaintiffs.

“Neither defendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, the court would enter a default order against a party that fails to participate in any stage of a proceeding. … Nonetheless, despite the defendant’s failure to appear, plaintiffs asked this court to decide the case on the merits of their arguments and evidence. … By deciding this matter on the merits, the court in no way condones the conduct or legal scholarship of defendant’s attorney, Mr. Jablonski,” he said.

The decision followed a hearing last week on concerns raised by citizens of Georgia under a state law that allows voters to challenge the eligibility of candidates on the state’s ballot. It is the states that run elections in the U.S., and national elections are just a compilation of the results of the 50 state elections.

The state law requires “every candidate for federal” office who is certified by the state executive committees of a political party or who files a notice of candidacy “shall meet the constitutional and statutory qualifications for holding the office being sought.”

State law also grants the secretary of state and any “elector who is eligible to vote for a candidate” in the state the authority to raise a challenge to a candidate’s qualifications, the judge determined.

The Constitution requires presidents to be “natural-born citizens,” and experts say that the Founders regarded it as the offspring of two U.S. citizens.

Top constitutional expert Herb Titus contends that a “natural-born citizen” is born of parents who were U.S. citizens at the time of the birth. The argument also is supported by a 19th-century U.S. Supreme Court decision, Minor vs. Happersett in 1875. The case includes one of very few references in the nation’s archives that addresses the definition of “natural-born citizen.”

That case states: “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners.”

An extensive analysis of the issue was conducted by Titus, who has taught constitutional law, common law and other subjects for 30 years at five different American Bar Association-approved law schools. He also was the founding dean of the College of Law at Regent University, a trial attorney and special assistant U.S. attorney in the Department of Justice.

“‘Natural born citizen’ in relation to the office of president, and whether someone is eligible, was in the Constitution from the very beginning,” he said. “Another way of putting it; there is a law of the nature of citizenship. If you are a natural born citizen, you are a citizen according to the law of nature, not according to any positive statement in a Constitution or in a statute, but because of the very nature of your birth and the very nature of nations.”

If you “go back and look at what the law of nature would be or would require … that’s precisely what a natural born citizen is …. is one who is born to a father and mother each of whom is a citizen of the U.S. or whatever other country,” he said.

“Now what we’ve learned from the Hawaii birth certificate is that Mr. Obama’s father was not a citizen of the United States. His mother was, but he doesn’t qualify as a natural born citizen for the office of president.”