OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA CARL SWENSSON, Plaintiff V.

BARACK OBAMA, Defendant

OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA KEVIN RICHARD POWELL, Plaintiff V. BARACK OBAMA,

Defendant

Now come Plaintiffs Carl Swensson and Kevin Richard Powell, by and through undersigned counsel, and respectfully move the Court, pursuant to O.C.G.A. 50-13-41(a)(2) and 50-13-13(a)(6); OSAH Rules 616-1-2-.15 and 616-1-2-.20; and other applicable law,

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for leave to take depositions in each of the above-styled cases,

and Plaintiffs show to the Court the following:

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MOTION FOR LEAVE TO TAKE DEPOSITIONS

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DOCKET NO.: OSAH-SECSTATE -CE 1216218-60-MALIHI

HEFT;

ULL 3 0 Nit

Kevin Westray. Lea

DOCKET NO.: OSAH-SECSTATE-CE1216823-60-MALIBI

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The above-captioned cases are actions in which Plaintiffs

are challenging the qualifications of Defendant Barack Obama to appear on the voting ballot in Georgia as a candidate for the Presidency of the United States.

On December 15, 2011, counsel for Defendant filed in each of the above-referenced cases a pleading styled as a "Motion to Dismiss," with an "Affidavit of Michael R. Berlon" and a

"Statement of Material Facts Not in Dispute" included therewith.

Based upon the inclusion with each "Motion to Dismiss" of a supporting affidavit and "a short and concise statement of each of the material facts as to which the moving party contends there is no genuine issue for determination," see OSAH Rule 616-1-2.15(1) ("Summary Determination"), it appears to undersigned counsel for Plaintiffs that the aforesaid "Motion[s] to Dismiss" are in actuality motions for summary determination, or in more traditional terms, motions for summary judgment. 4.

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OSAH Rule 616-1-2-.15(3) provides that When a motion for summary determination is supported as provided in this Rule, a party opposing the motion may not rest upon mere allegations or denials, but must show, by
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affidavit or other probative evidence, that there is a genuine issue of material fact for determination (emphasis supplied). 5.

Under traditional summary judgment rules in Georgia, Until the moving party produces evidence or materials which prima facie pierce the pleadings of the opposing party, no duty rests upon the opposing party to produce any counter evidence or materials in affirmative support of its side of the issue as made by the pleadings. See, e.g., Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 22, 232 S.E. 2d 369 (1977).

Although Plaintiffs expect to argue and demonstrate, upon filing their response to Defendant's "Motion[s] to Dismiss," that

Defendant has failed to make even a prima facie showing that there is an absence of any genuine issue of material fact for determination herein, nevertheless Plaintiffs recognize that Defendant will contend to the contrary. And in the event that this Court should ultimately find that Defendant has, in fact, made a prima facie showing that Defendant is entitled to summary judgment,

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The potential application in the instant cases of the above rule cited in Weldon would thus trigger the aforesaid OSAH Rule 616-12-.15(3) and require Plaintiffs herein to show, by affidavit or

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[T]he burden shifts to the non-movant[s], who must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. See Weldon v. Del Taco Corp., 194 Ga. App. 174, 390 S.E. 2d 87 (1990).

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other probative evidence, that there is a genuine issue of

material fact for determination by the Court in order to avoid summary judgment for Defendant.

In light of the foregoing, and in order to properly respond to Defendant's "Motion[s] to Dismiss," Plaintiffs seek leave of Court to take the depositions of Michael R. Berlon, who is the Chairman of the Georgia Democratic Party and a member of the Democratic National Committee, and who gave the affidavit in

support of the Defendant's "Motion[s] to Dismiss"; Brian Kemp,

who is the Georgia Secretary of State and legally charged with

enforcing state and federal candidates' eligibility for office and for placement on the Georgia ballot s ; and Defendant Barack Obama, whose eligibility has been challenged herein. Plaintiffs submit that, should this Court ultimately find that Defendant has, in fact, made a prima facie showing that Defendant is entitled to summary judgment (which showing Plaintiffs contend

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O.C.G.A. 21-2-5(a) provides that "[e]very candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought." O.C.G.A. 21-2-5(c) further states that "[t]he Secretary of State shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering. If the Secretary of State determines that the candidate is not qualified, the Secretary of State shall withhold the name of the candidate from the ballot or strike such candidate's name from the ballot if the ballots have been printed." Page -4-

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Defendant has not made), the testimony of each of these witnesses will be necessary and desirable as "other probative evidence" to satisfy Plaintiffs' burden to prove, in support of Plaintiffs'

responses to Defendant's "Motion[s] to Dismiss," the existence of a genuine issue of material fact for determination by the Court. 7.

Further, Plaintiffs do not realistically anticipate that the testimony of the aforementioned witnesses could be procured by affidavit or otherwise than through the taking of depositions.

Each of these witnesses occupies a political office or position, and it is highly unlikely that any of the three witnesses would agree to voluntarily discuss the specifics of these cases with, or subsequently produce an affidavit for use by, undersigned

counsel for Plaintiffs. More specifically, Defendant Obama is a party to this action and is represented by counsel, and Plaintiffs' counsel would be unable, ethically or practically, to conduct an interview of Defendant without the concurrence of defense counsel (which concurrence is highly improbable) in the absence of a Court order for the taking of Defendant's

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deposition.

Georgia Democratic Chairman Berlon, as he has apparently given

his affidavit herein as part of his duties with the Democratic Party and, according to the public webpage for the Secretary of

State's Elections Advisory Council (formed by proposed witness

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The same can additionally be said with regard to

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and Georgia Secretary of State Kemp), opposing counsel "Mike

Jablonski" (an Elections Advisory Council appointee of Secretary of State Kemp) is the "General Counsel, Democratic Party of

Georgia." Chairman Berlon, in his official capacity, would thus be a legal client of opposing counsel and would therefore be

legally and ethically unapproachable by Plaintiffs' counsel in the absence of a Court order.

Moreover, it would simply be fundamentally unfair for

Defendant to be allowed to seek summary judgment based upon the submission of a self-serving affidavit by Georgia Democratic Chairman and Democratic National Committeeman Berlon while Plaintiffs are disallowed the opportunity for cross-examination of Berlon, Defendant Obama, or any other Democratic Party official, particularly when Defendant's "Motion[s] to Dismiss" rely so heavily upon allegations of events occurring and decisions made solely within the State and National Democratic Party structures.

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If granted leave of Court to conduct depositions herein,

undersigned counsel for Plaintiffs would anticipate taking these depositions during the weeks of January 2 and/or January 9, 2012, in consultation with defense counsel and at mutually agreeable

times and places.

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This Motion For Leave to Take Depositions is not interposed for any improper purpose, but for the purpose of obtaining

evidence for use in the above-captioned proceedings initiated by Plaintiffs herein.

WHEREFORE, Plaintiffs respectfully request that Plaintiffs

be granted leave of Court to take depositions in these matters as described hereinabove.

Respectfully submitted, this 30th day of December, 2011. HATFIELD & HATFIELD, P.C.

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201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820

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10. J. ark Hatf ntiffs Atto ney for Georgia Bar No. 337509

CERTIFICATE OF SERVICE

I, J. Mark Hatfield, Attorney for Plaintiffs, do hereby certify that, pursuant to the Order entered in the above-

captioned matters regarding electronic service, I have this day served the foregoing Motion For Leave to Take Depositions upon: Michael Jablonski michael.jablonski@comcast.net

by email addressed thereto in order to insure proper delivery. This 30th day of December, 2011.

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201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820

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HATFIELD & HATFIELD, P.C. J. ark Hatfie Attney for P iffs Georgia Bar No. 337509