by Doug Book, staff writer
Though Georgia Administrative Judge Michael Malihi claimed to have issued a decision based upon “the law as well as the evidence,” we now know he made proper use of neither. For the Judge had no evidence in the Court record upon which to base his assertion of “fact” that Obama “was born in the United States.” And the Indiana Appeals Court decision to which Judge Malihi looked for his ONLY guidance made a thoroughly incorrect interpretation of existing case law. (1) p3
In short, Judge Malihi’s decision wouldn’t pass muster in a first year law school classroom.
“The court can only rest its finding of fact on evidence that is part of the court record.” This is a rule of evidence of the superior court as stated by Attorney Mario Apuzzo. Yet only plaintiff’s evidence was contained in Malihi’s Court record and the Judge concluded that their claims were “not persuasive.” As Apuzzo puts it, “surely the court did not use those “insufficient” documents as evidence of Obama’s place of birth.” (2)
So how exactly was Judge Malihi permitted, in a proper legal manner, to state in his Decision “the following facts are considered: 1) Mr. Obama was born in the United States…”? (1) p6
But just as disturbing as basing “fact” on evidence he didn’t have is the Judge’s choice of an incorrectly reasoned and decided Indiana case as the basis of his decision.
As in the case before Malihi, the 2009 Indiana case “Ankeny v Governor” involved a suit by plaintiffs who claimed Obama did not meet the Article ll, “natural born citizen” requirement of the United States Constitution.
Although there is no definition of “natural born citizen” in the Constitution, there is a Supreme Court case in which the term “natural born citizen” is clearly defined.
Writing for the unanimous majority in the 1875 SC case Minor v Happersett, Chief Justice Waite stated:
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. (3)
Minor goes on to state:
Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. (3)
So Minor made it clear that “natural born citizens” are born in the United States to parents who are US citizens. And those born in the US to parents who may not be citizens, may or may not be citizens themselves. Note there is NO question of “natural born” status in this second example, but merely citizenship.
However, the Ankeny Court decided that Minor did not really define “whether a person who is born within the United States of alien parents is considered a natural born citizen,” claiming the SC “left the issue open.” (4)
The Indiana Court then went on to conflate Article ll of the Constitution with the 14th Amendment which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” (5)
“The United States Supreme Court has read these two provisions in tandem…” states the Ankeny Court with a total lack of evidence for its claim. It then makes the INCREDIBLE leap that although the language contained in Article ll and the 14th Amendment is completely different and although the 14th Amendment doesn’t speak of “natural born” citizens at all, the Supreme Court has somehow decided that anyone born in the United States is a “natural born citizen.” (4)
It is this nonsensical bit of legal legerdemain upon which Judge Malihi relies in deciding Barack Obama is qualified to be on the Georgia ballot, writing “as discussed in Arkeny, [sic] he became a citizen at birth and is a natural born citizen.” (1) p10
But these represent only a couple of the remarkable errors made by Judge Malihi in his Obama Decision. Coach is Right will present others over the next few days, along with the progress of appeals this decision is guaranteed to evoke.
Use this site to contact your Congressional Representative:
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To read more use these links:
1 http://www.westernjournalism.com/wp-content/uploads/2012/02/2012-02-03-Decision-on-Georgia-Cases.pdf
2 http://puzo1.blogspot.com/2012/02/all-that-is-wrong-with-georgia-state.html
3 http://law2.umkc.edu/faculty/projects/ftrials/conlaw/minorvhapp.html
4 http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf
5 http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
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Related posts:
- The Georgia, Obama eligibility decision: legally incorrect and ethically indefensible
- Judge rules Obama must PROVE presidential eligibility in Georgia courtroom on Thursday
- Georgia case could determine whether Obama’s name may be placed on 2012 state ballot…ANY 2012 state ballot!
- Obama attorney knows eligibility hearing was disaster for the president
- Not the media the Democrats or the Republicans will challenge Obama’s eligibility so we have to
1) Malihi accepted the case.
2) Malihi denied request to squash subpoena.
3) Malihi indicated he was ready to grant summary judgment to plaintiffs at outset of trial (in conference with attorneys and plaintiffs).
Does the above look like a man trying to undermine or shoot down plaintiffs' case?
1) Malihi gives plaintiffs two hours to present case (including qualifying experts and experts)—an impossible time frame to properly present a case as factually complicated as this. (Perhaps the judge was setting up grounds for an appeal by doing so?)
2) Malihi rules for defendant on the basis of facts not in evidence and state case law that flies in the face of established higher court precedent. Perhaps the judge was establishing fertile grounds for successful appeal?
In short, I think this judge wanted to rule against defendant, but was scared to (who wants a proctology exam of one's life by the Administration and the media). So, he paved the way for a successful appeal to a higher court in every way he could.
Anyone else see it that way?
Observerman,
That's a pretty neat idea. Never occurred to me at all. There is NO QUESTION but that an honest judge would overturn his decision.
There are 2 other possibilities: Malihi is a gross incompetent (which his prior actions in the case don't support); or the whole thing is a clever set-up for the purpose of providing a precedent. Seems silly for a judge to do so many things wrong, maybe even illegal, in order to manufacture a precedent though, doesn't it?!
What do you think about the possibility that the Judge ruled on the merits and the Plaintiffs raised a bad argument?
Even under the Dad British subject argument which allegedly renders our President to an indecisive set of allegiances, would result in multiple former presidents being ineligible ranging from Jefferson to Wilson to Hoover.
I can only conclude since Leo and Orly Taitz are telling the truth that the conspiracy to subvert the government to the communists has been going on since the times of the Founding Fathers!
The fight in Georgia is NOT over. The judge in the case was an ADMINISTRATIVE judge. His actions are ruled by Title 50 of the O.C.G.A. This title contains all the Law that administrative agencies MUST conform to in all decisions. These decisions in contested cases are always allowed JUDICIAL review – that is review by a REAL judge using REAL law. See O.C.G.A. § 50-13-19. Judicial review of contested cases. In short – Judge Michael Malihi erred in his decision, opening the door for a contested case and Judicial review as long as the plaintiffs file a petition for review within 30 days…
This could be a real case now. Not just some admin farce. The plaintiffs could now get in front of a REAL judge.
I believe up until the decision was made, people were calling this Judge a real judge and this hearing a real trial on the merits and that the decision was going to be a bombshell that rocked the nation. In fact, this website may even suggest as such in previous postings.
Once the decision came down, I saw a Judge making a consistent decision with the other judges who have heard these matters, and proponents of the NBC argument again with egg on their face and crying for conspiracy.
If you are "justaregularjoe" you are not an attorney and well versed on how legal argument is structured. Why is it that all cases so far have been thrown out or went in favor of the President? Why do most attorneys outside of Leo and the dentist scratch their heads when they hear people ranting about the ineligibility of the current president? Are all the judges in different jurisdictions conspiring or might it just be that this argument is bad? Again, Occams razor should provide guidance.
Braddock…Maybe it's time to hear from Judge Andrew Napolitano regarding HIS "take" on Obama's eligibility… does anyone know if Napolitano has been asked specific questions on this subject ? If I remember correctly…the Judge's forte was Constitutional law.
Doug, as a writer you may want to search out the good judge's website…even drop him an e-mail….send him copies of your articles…find out if you are asking the right questions…who knows he may even offer some advice…….
I know this coverage has been very demanding Doug….but keep on truckin', my friend…..
Im am "justaregularjoe" however, I CAN read and I DO know what Title 50 in the Georgia code represents. The problem here is that most people are not willing to actually go read the law and look into jurisdiction in these cases. Title 50 says what is says. I didn't make it up. And as an administrative "judge" any decision that creates a case in controversy, this one included, allows for actual judicial review by a real court of law.
As for Occam's Razor? Well, in today's world its surprising how many things are constructed as to conceal the real truth. Most people today do not understand jurisdiction and don't have the time to read and learn. No, I'm no lawyer but, I do have time to read. And in this case, where the judge did NOT rule on the evidence "in the record" as he should have, he denied the plaintiff due process and created the case in controversy.
Oh and by the way, not all judges have ruled that same way. This is why this controversy continues.
And if Occam's Razor were really in play here, why wouldn't we be able to see ALL of the information that should be in the public record? Where ARE his college transcripts? His passport records? His SSN application? His employment records? His bank records? Why is he using a SSN that was assigned to a dead Connecticut man when he was suppose to have been born in Hawaii? Why is ALL of this information being hidden by Obama himself? What does he really have to hide? Yes, I believe that there really could be issues with the impartiality of MOST of the judges in these cases because they are afraid of what would happen to them and or the political system as it currently exists in America if the people find out how things are really done in Washington…
JMHO.
Yes, those commies have been after us since before Karl Marx was born. They are clever. But, despite that, it should be clarified that Mr. Jefferson and others who were around at the time The Constitution was adopted were exempt. It is right there in the language, and the exeption was placed there by that noted socialist, Alexander Hamilton, whio is said to have had Presidential ambitions. He was an out-and-out alien who was born in the West Indies and he, I guess the logic follows, duped Mr. Washington into entrusting our finances to him as Secretary of the Treasury.
I doubt that President Hoover (Canadian Mom) was trying to usher in a new era of communism as a foreign national with uncertain allegiances. I also think that Wilson (British Mom) wouldn't be exempt given that he was president during the 20th century and the exceptions failed to apply over time. Chester A. Arthur wouldn't fall under the exception nor would Buchanan (but both had Irish fathers).
Let me cite the relevant case "US v. Wong Kim Ark U.S. 1898"
"The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. "
The dissenters, who argued for the Taitz interpretation of citizenship LOST. Whether or not Wong Kim Ark applies to children born to illegal immigrants isn't clear, but for someone here legally on a visa (Obama's Dad) and his mother (a U.S. citizen), the case governs and governs well.
Braddock – just curious – did you read the article? It would have answered your questions, had you bothered to do so.
Hold on, my questions in this particular instance was directed at the point made by Oldpuppymax, wherein he makes an excuse stating that if they didn't know then about the NBC issues then, they should still hold the President accountable now. I certainly read the article several times over to ensure that I understood the points of the original article. Why would you think the original article answered the points made in the above comment because the article fails to address them? Where in the original article does it state answers to my three questions (two are actually substantive):
Why the big stink now? This asks why do people care now but not then? This wasn't addressed in the article that I read prior to posting.
Are people smarter all of a sudden? This wasn't addressed in the article that I read prior to posting either because it wasn't relevant to the original topic that the decision was supposedly based on "legal blunders" which don't appear to be very clear.
Normally, I try not to rely on a person who calls themself Coach for legal analysis, I rely on attorneys or judges.
Braddock…the presumptions back then….AS IT IS NOW…. most likely were that A). any man running for the Presidency would never Dare breach the qualifying procedures and requirements necessary to hold that office…B). That said candidate was a "Man-of-his-word"….C). That all of our Presidents to date had NOT taken such strenuous, costly and suspicious efforts to conceal ALL of his personal historical data and records….even those of a public nature. D). That no other President has ever been accused of illegally holding another individual's Social Security Card number that would not allow him to pass an undocumented worker's E-Verify Scan.
E) That other than outright moles or Judases, no man had any interest in so crippling his country as to bring about its near death economically and otherwise.
We've ALWAYS held our Presidents accountable for their honesty, or their lack of it….Nixon is a prime example, and so too were the waving and rattling of Impeachment orders against Clinton…..so this IS NOT the sudden, selective probing into a "stink" as you would have uninformed folks believe it is.
By the by…. Doug Book isn't "Coach"…and you could do alot worse than having either of them on your side when the going gets nasty…You appear to be the "odd-man-out" Braddock. ….. FYI you chuckle-head, Born in the USA is just a song…and does not automatically qualify any individual of foreign born parentage to be President of these United States..
So, has anyone in Georgia started a recall or impeachment effort for this obviously incompetent or dishonest judge? Or just going to let it ride?
The "Administrative Law Judge" is an employee of the Georgia Office of State Administrative Hearings. He is not eligible for either recall nor impreachment any more than, say, an employee of the Georgia Department of Motor Vehicles
What makes this judge obviously incompetent or dishonest? Is it because you disagree with his decision? Wouldn't there need to be valid grounds for a recall or impeachment first? Is rendering a decision you disagree with evidence of incompetency or dishonesty? Are you an attorney or legal expert that could conclude whether the judge's acts were incompetent and what the relevant standard is to determine that?
In this case the "judge" did not follow the rules or procedures of the court and THAT'S what makes him incompetent and or dishonest. If he were to have followed the rules, he would have made his decision ONLY on the facts in the record. And the only facts in the record were the proof provided by the plaintiff – testimony by experts on the questions being raised. And this is nobody but Obama's fault. He and his lawyer thumbed their nose at the Georgia court system – NOT the plaintiff.
The fact that he ignored the record and ruled on testimony not presented in the case shows a disregard for the law and procedures of the Georgia court system and at the very least he should be censured by the legislature. I personally think he should be removed from his position. If he can't be honest and follow the rules who's to say he won't do this kind of thing again? Be sides being morally objectionable, he is causing undo stress on the judicial system by forcing other judges to correct his mistakes.
JMHO
Are you seriously trying to argue that "the Judge had no evidence in the Court record upon which to base his assertion of “fact” that Obama “was born in the United States?”" Are you forgetting about the evidence provided by the Plaintiffs which stipulated that the President was born in Hawaii? If the Plaintiffs and the Defendants both agree (which they did), then it is considered a stipulated fact. Any first year law school classroom would have made that clear.
Evidence presented by plaintiffs which stipulated Obama was born in Hawaii? Which plaintiffs? There were 3 separate suits. Even if one plaintiff HAD done so, it would have no bearing on the other suits.
Actually there were four separate suits, not three. One of the (and it doesn't matter who) Plaintiffs submitted evidence into the record of Obama's birth certificate.
The evidence had bearing on the other suits since there was only one opinion handed down by the judge. The judge addressed Farrar's specific claims more than Welden, Powell, and Swensson. I ask you then, why wouldn't the evidence have bearing on the other suits since they involve the same case, facts, legal issues, and controversy?
Because the Plaintiffs tried to show in the hearing that President Obama's birth certificate was fraudulent, they failed to address the issue of where he was actually born instead. Given that there is no physical evidence to state that he wasn't born in Hawaii and that it was the prevailing understanding of time based on the verifiable records from the Hawaii Sec. of State., the Court properly concluded that he was born in Hawaii.
Here is the stipulation from attorney Van Irion in the "Opposition to Defendant's Motion to Dismiss"
The matter before this Court has nothing to do with the birth place of the Defendant, nor does it assert that he is not a citizen of the United States. In fact, limited to this challenged primary election, the Plaintiff will stipulate that the Defendant was born in Hawaii, that the Defendant is a U.S. Citizen, and that the Defendant was Constitutionally-qualified to serve as a U.S. Senator. The Plaintiff makes no assertion regarding the Defendant’s passports, or social security number, or any other fact related to the Defendant, other than the one fact asserted at the beginning of this opposition: that the Defendant’s father was not a U.S. citizen."
This quote can be found in article at: http://obamareleaseyourrecords.blogspot.com/2011/… (Posted Dec. 28, 2011)
See: (Section E. Contrary to the Defendant’s Assertion, No Court has Ruled on the Question Presented)
Quote attributed to: ELmo
Are you suggesting that Malihi used PLAINTIFF evidence as the basis of his decision or his claim that Obama was born in Hawaii???
Maybe you should read the Decision. Malihi himself states: "The Court finds the testimony of the witnesses (there were ONLY plaintiff witnesses) as well as the exhibits tendered to be of little if any probative value and thus wholly insufficient to support Plaintiff's allegations." And Malihi goes on to wrap up his views: "None of the testifying witnesses provided persuasive testimony. Moreover, the Court finds that none of the written submissions tendered by Plaintiffs have probative value. Given the unsatisfactory evidence provided by the Plaintiffs, the Court concludes the Plaintiff's claims are not persuasive." These are on pages 4&5 of the Decision. I've included the link once again.
Are you claiming that Malihi used the completely unworthy witness testimony and documentation he refers to above as the basis of his Decision????
That leaves Malihi with NO evidence provided by the Defense and non-persuasive, worthless evidence presented by Plaiintiffs. Puts us right back where we started doesn't it. And right back to the points I made in the piece: Upon what evidence did the Judge base his finding of FACT that Obama was born in Hawaii?
http://www.westernjournalism.com/wp-content/uploa…
You got it Braddock…I AM seriously and successfully arguing that the judge had no verifiable, untainted evidence that Barack Obama has any legal authority to hold the office of President of the U.S……how many different people here have to tell you that ? We don't freakin' believe Obama , or you, for that matter.
And no amount of probing, and jaw-jacking by you is going to change that fact. You still want us to overlook the fact that Obama's father had dual citizenship from Kenya and England don't you ?…well it's not going to happen…so your time here has been wasted….
[...] [...]
On one side we have a judge whose decision is actually the same as two other judges in the last three weeks, and five other judges in the last two years. There have been no judges who have ruled in contradiction.
And other side we have a personal injury lawyer/blogger who has never won a single case or even a single motion in any Birther case he's ever been involved with. A lawyer so "confident" in his legal theories that he has been too terrified to even try again after getting told by the Supreme Court to take a hike.
I gotta tell ya. It's not really a tough call on who should be deferred to here.
And what has any of this criticism of Taitz to do with the "evidence?" And who are the other 2 judges over the past 3 weeks? Which cases were they?
Are you serious? The case law the Plaintiffs cite is closer to the time period when these people were president (prior to 1930). Moreover, why the big stink now? Are people smarter all of a sudden? From my understanding people's knowledge of civics was much more advanced in the 19th century than currently. Try taking a civics test from that era and see how you do and then tell me that people "didn't know." Immigration was a hot button issue then, but involving the Irish and Italians, so I think it would be silly to say that citizens then didn't know so they got away with it.
I apply occams razor to this: the judge made his conclusion consistent with other qualified judges, the President presented not just one but two items documenting consistent facts about his birth, and that several other presidents didn't have this problem until this one. Either it is a conspiracy of amazing proportions or the president is actually qualified under the constitution. I think the simplest answer is the correct one here. Please explain otherwise.
Consistently incorrect decisions are not much to cheer about or present as evidence that all is well. For example, the Ankeny decision–I assume that's the one you point to as then other suits have been thrown out for "lack of standing"–was clearly based on an incorrect reading of the Minor case. Ankeny claims Minor did not define "natural born citizen." That is not so. The definition in the Minor case is quite clear, as stated in the article.
Obama has presented "evidence" that has been shown to be false by experts in their fields. That "birth certificate"? Sheesh – that thing has so many issues with it that I'm surprised Adobe hasn't sued the WH because of the bad name it is giving their product.
Bad decisions based on bad decisions are part of the problem with the current judicial system. Instead of researching the law itself, these "judges" find some case that supports their particular opinion and quote that case as their "proof". Even if the case they quote has been shown to be incorrect. This kind of law creates a bad precedent and perpetuates bad law.
And just for giggles – how about a case on unequal treatment under the law? McCain (who I didn't like either…) was forced to be vetted through Congress while Obama was given a pass. And the only question with McCain was the place of his birth. Both his parents were natural born citizens and citizenship DID pass via birthright. Obama was many more questions concerning his citizenship besides birthplace (which by the way IS in question since members of his own family has said he was born in Kenya). His father WAS a British subject so he did NOT have two citizen parents even if he was born in Hawaii which I personally doubt.
There are just too many questions wrapped around our "transparent" president to make this an open and closed case. No matter what your opinion or Occam's Razor say.. I want real substantiated proof of his eligibility NOT some administrative judges "opinion" based on bad precedent.
JMHO
Hiya !! to imjustaregularjoe…welcome to CiR..I really liked both of your posts today and hope that your sage opinions and observations will become regular events around this forum…
By way of explanation…it appears that this site has ALSO attracted the sudden attention of an inordinate number of Obomots trying to mess with the flow of usually TEA Party and Constitutional type conservatism-conversation around here…..which means that we have been effective in our attacks against them…..hope you are "game" for the verbal attacks you may have on your hands if you insist upon being so bloody sensible !!….again, welcome! You will also find many friends here.
Thanks for the note… I don't know about the sensible part… but I'm up for a good argument when the stakes are so high.
Limelizzie check your mail.
Coach