Georgia Appeal Has Been Filed (despite roadblocks)

The Georgia Superior Court tried to pull a fast one. They initially refused to file our Petition for Appeal. They claimed that our papers lacked two dollars for the two motions that were included along with our petition. We DID include the $213.50 filing fee for the petition, but they were going to sit on our documents and not file any of them, in part because of the missing $2.

The Superior Court’s clerk’s office made several other excuses as to why our petition couldn’t be filed. I won’t bore you with the details. Suffice to say they tried several excuses, none of which reflect normal operating procedures for any court I’ve heard of. Each time I explained why their reason didn’t make any sense under the law or court rules, they moved on to another excuse. After being transferred, placed on hold, hung up on, and argued with, they finally agreed to file the petition, but still refused to file the motions until they got their $2. In my experience as an attorney, including being temporarily admitted in 4 states outside Tennessee, and admitted to practice at every level of Federal and State courts, this is unheard of.

To top off our little story, the Georgia Superior Court didn’t contact our office to tell us that there was a problem with our filing. They just sat on our petition and emergency motion. Had we not called to verify that our petition was filed we would have missed tomorrow’s filing deadline. (This is why we call to verify filings.) The $2 was personally delivered today and the emergency motions are now filed.

One of those motions is an Emergency Motion for Stay and Preliminary Injunction prohibiting the Georgia Secretary of State from including candidate Barack Obama on the Georgia Presidential Primary ballot. Read the filing on our website. Quoting from the motion,

"should this Court incorrectly deny this motion it would confirm that the judicial branch is now unwilling to enforce the clearest and most basic requirements of the U.S. Constitution. Harm to Petitioner that would result from such incorrect refusal to grant this motion represents nothing less than the loss of our constitutional form of government for all Americans."

Our 15 page Appeal, available on our website, argues that the decision of the OSAH court:

violated Rules of Constitutional Construction,
misapplied Minor v. Happersett,
ignored the clear definition and precedential status of Natural Born Citizen in Minor,
ignored the Minor Court’s discussion of other categories of citizens,
ignored the Minor Court holding that the 14th Amendment “Did Not Add to the Privileges and Immunities of a Citizen”,
applied dicta from Wong Kim Ark instead of precedent from Minor, and
relied upon the severely flawed Indiana state court ruling, Arkeny v. Governor.

The OSAH 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.

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. The OSAH ruling, therefore, violates rules of construction that the OSAH had itself relied upon just days earlier in the same litigation. Quoting Judge Malihi,

"When the Court construes a constitutional or statutory provision, the 'first step…is to examine the plain statutory language.' [T]his Court is not authorized either to read into or to read out that which would add to or change its meaning.”

The OSAH decision ignores a precedential holding from the U.S. Supreme Court in favor of dicta from a later Supreme Court case. This issue was presented at length to the OSAH at oral arguments and in written submissions, yet the OSAH chose to completely ignore this issue in its decision.

That the OSAH decision relies upon a non-binding opinion from an Indiana State Appellate Court to support its conclusion further illustrates their failure to follow venerable rules of construction and judicial restraint. In Arkeny v. Governor, the Indiana opinion relied upon was litigated by pro-se citizens of Indiana against the Governor of that state. The Indiana court reached its holding via an issue that did not require interpretation of the U.S. Constitution, yet that court then proceeded to construe the U.S. Constitution anyway. The Indiana court‟s decision to construe the U.S. Constitution without need to do so represents an overreaching Judiciary and violates a doctrine of judicial restraint established by the Supreme Court over 150 years ago. The OSAH’s reliance upon the Indiana court’s opinion, rather than follow a precedential holding of the U.S. Supreme Court, further demonstrates the OSAH’s errors of law.

So now our case is in the hands of the Georgia Superior Court. We will continue to pursue the vindication of our Constitution from this outrageous ruling. Thank you for standing with us and supporting Liberty Legal Foundation in this important effort.

In Liberty,

Van Irion, Founder

LIBERTY LEGAL FOUNDATION