Is this gonna involve something about fish and fishermen?

FWIW, I don't see this as being an extraordinary writ case, and specifically not mandamus in its usual application to compel, direct or prohibit an agency action.

To my way of thinking, the statutory language identifies the remedies. That is, under certain circumstances, the Circuit Court can affirm the decision or remand for further proceedings. Under other circumstances, the Circuit Court can reverse. Factual findings are to be given deference based on a quasi-judicial record, whereas the Circuit Court has broader authority to reviews the legal finding (essentially a de novo standard). And so forth.

Nothing about this...nothing...suggests to me that the proceeding is in the nature of an extraordinary writ. Whatever you call it, I see it as being a a sui generis proceeding that is much, much more in the nature of an appeal.

IMHO, CB, if you apply mandamus standards, you'll quickly find yourself contradicting the statute authorizing the "appeal".

And if you're looking for a title for the action, one could just as readily call it a "Petition for Judicial Review" or "Petition to Appeal an Election Challenge Decision" or "Petition Pursuant to [insert statutory citation]" as a "Petition for Mandamus".

The statute says "Petition", it doesn't say "Complaint".

It hardly makes sense that the "Petition" would be initiated through the filing of a new civil action and issuance of a 30-day summons. Whether you designate it as a "Petition for Review" or a "Petition for Mandamus" or, as you suggest, "Petition to Appeal an Election Challenge Decision"... in the absence of specific rules governing the action, it stands to reason that the court would treat it as procedurally akin to to mandamus, given that mandamus is ordinarily the procedure used to invoke judicial review of administrative decisions.

I mean... show me another set of rules that would apply.

It may be that because of the statute, the Superior Court is required to hold a hearing irrespective of the merits, or lack thereof, of the assertions in the Petition... but it still seems to me that the only process that makes sense would be the filing of an appropriately designated petition, ex parte to the court, with the court to respond by setting a hearing date and issuing its order directing time of service. One can assume that time is of the essence in all of these cases.

I've pulled the Superior Court docket from the Powell v. Handel case --that's the one where Karen Handel (former Secty of State) initiated an election challenge against candidate James Powell, because of issues over residency. The ALJ found in favor of the candidate, Handel nonetheless excluded Powell from the ballot, so Powell was thus appealing under the election code. The case record is here:
http://www.fcclkjudicialsearch.org/Scri ... 253D619500

Procedural highlights:

07/14/2008 PLAINTIFF'S ORIGINAL PETITION
07/14/2008 ORDER
07/21/2008 AFFIDAVIT
07/25/2008 RULE NISI
07/25/2008 NOTICE
08/04/2008 ORDER
08/12/2008 ENTRY/NOTICE OF APPEARANCE
08/19/2008 MOTION
08/20/2008 RULE NISI
08/21/2008 ORDER
8/25/2008 NOTICE OF HEARING
08/29/2008 OTHER
09/10/2008 APPEAL

So this looks to me like the same procedural path as a writ -- obviously I am hampered by the inability to call up the actual documents. The "Appeal" on 9/10/2008 is the appeal FROM the Superior Court's ruling - everything after that deals with preparation and certification of the record to the state Supreme Court.

So the actual Superior Court actions are the ones taking place between July 14 and August 29.

The record shows the filing of a "Case Initiation Form" along with the petition on July 14 but no issuance of a summons.

A "Rule Nisi" is an order scheduling a hearing. It's an archaic term, apparently Georgia is the only state that still uses it, but it is a concept that fits within the Georgia statutory framework for extraordinary writs. In any case, the process was the filing of a Petition, issuance of a Rule Nisi, and scheduling of a hearing. You'll notice that there is an appearance by opposing counsel, but no filing of any document designated "Response" or "Answer".

If I was wanting to appeal an election challenge in Georgia, the first thing I would do would be to go over to the courthouse and pull the file from the Powell v. Handel case, to see the pleadings... because Powell won. So whatever his lawyers did, they apparently did it right. So that's where the model pleading can be found.

Mandamus generally only applies to purely ministerial duties and involves an order that the agency or official take these actions. Entitlement to relief must be clear and unequivocal. Mandamus is not a proper remedy when what is challenged is an exercise of discretion.

While that's a generic language usually used to describe mandamus, it isn't hard to find recent case law right in Georgia saying basically the same thing.



R.A.F. v. Robinson, 690 S.E.2d 372, 374 (Ga. 2010) (citing Bland Farms, LLC v. Ga. Dep't of Agric., 637 S.E.2d 37, 39 (Ga. 2006)) (internal citations omitted).



What's wrong with the rules in the challenge statute?



O.C.G.A. § 21-2-5(e).

That does not describe mandamus review, as "other error of law" clearly indicates a form of de novo review. The procedure may be unusual, but there is nothing "extraordinary" about judicial review of a final agency determination, and that is what the challenge statute describes.

You miss my point entirely.

I'm talking about the procedure that must be followed, not the standard of review.

Writ procedure goes like this:
a. Party files Petition
b. Judge reviews Petition, issues a show cause order setting hearing date
c. Petitioner serves order on defendant.
d. Hearing takes place.
e. Court rules

That's clearly what happened in the Powell case, from the court docket. Powell filed a Petition. The court issued a Rule Nisi (which is a show cause order - see http://law.justia.com/codes/georgia/201 ... 1/15-13-4/ ). A hearing took roughly 6 weeks after filing of the Petition; the Judge ruled in Powell's favor.

My point is that courts don't make up procedures ad hoc as they go along. The election statute clearly does NOT set forth any procedure... it just references a "Petition". Georgia rules of court do not reference election challenges. So they you have to ask, "what kind of Petition is this?", and "what sort of procedure should be followed?" My legal experience tells me that it follows standard writ procedure: Petition/Show Cause Order / Service of Order/' Hearing. My common sense tells me to dig up the record of a previous election challenge appeal and see what was done. I did that, and I see exactly what I expected to see: Petition/Show Cause Order / Service of Order / Hearing.

Whatever the various birther clowns have filed, none of them submitted a Petition requesting issuance of a show cause order to the Secretary of State; therefore none of them has asked for the one thing they need to get the ball rolling.

Now it may be that the Court will simply disregard defects as to form and construe the filings as being in the nature of a writ, and then issue the show cause order.... but my point is that that the papers on file to date don't meet that requirement.

If you follow appeal procedures, rather than writ procedures, then nothing happens for months. Whatever briefing schedule is set forth in Georgia appellate rules would be invoked, and that means that there would be a certification of an appellate record, and appellant's brief, a respondent's brief, a reply brief... and time for oral argument.

If you treat this as a new civil filing with an issuance of a summons and service on counsel... well then, at the case is not even at issue until the opposing counsel files a responsive pleadings.

So again, the writ procedure is the only one that makes sense.

I suppose I'll have to live with that.

How the court can treat an utter failure to name the proper respondent as a "defect in form" is beyond me. That's quite a defect, and three of these cases suffer from it. No writ issued against the named party can possibly achieve the relief the petitioners are seeking. The fourth case is proceeding as a regular civil as the idiot attorney proudly displays on her blog an image of the affidavit of service.

I agree with you, but I see a possibility that the the Chief Judge might simply decide that the fastest and most efficient route to getting rid of the thing is to treat it as if it were filed in proper form. I do think she can summarily dismiss from there -- no hearing required -- and in fact no "service" on anyone required. As I understand it, the ALJ's findings of fact have to be accepted, so the only question for the court to consider is whether there wan an erroneous legal determination. That's a pretty easy call.

I'm not saying that is what she will do.... I'm saying it's an option. It's a procedural shortcut to get to the merits and dismiss the case on substantive grounds. Otherwise the court ends up spending the next several weeks essentially giving legal procedure lessons to a group of attorneys who are wholly incapable of learning. (I say several weeks because I expect these clowns will be trying to undo the primary result after March 6th... I suppose at that point they will be arguing that the SoS should be restrained from certifying the election results).

It is very, very common for a court to do this with pro se litigants. The paper is a mess, but if the court can figure out what the person is getting at, it can be just more efficient over the long run to overlook the deficits and get to the denial and dismissal part of the case.

A similar entry appears on Powell's case but not on Carl's. I'm guessing that Welden & Powell's cases are being consolidated into Carl's( which has the lowest number of the the three) but Farrar's is being left in glorious isolation. But what do I know?

Yeah, it's kind of confusing looking at the public docket. For instance, as you state there's no entry for "transfer" of Swensson' case. However, the judge's name has been changed on Carl's case...



There's also a new motion appearing on Farrar's docket.

Quote:

Events and Orders of the Court
02/24/2012 MOTION
02/21/2012 PETITION
02/15/2012 ORDER
02/13/2012 MOTION
02/13/2012 CASE INITIATION FORM
02/13/2012 PLAINTIFF'S ORIGINAL PETITION

What a shame. The Birfers tried so hard to get three separate cases going and then to sustain them in the courts. That would have given them at least one-third of a chance for success, or so they must have figured. Also, they would have gotten triple the news coverage (not). Harassment by multiple law suits has been a favored strategy by Sovereign Citizens, who are well-represented in Birfistan.

4 separate cases. In as brazen attempt at judge shopping as I have ever seen. Hatfield, a legislator, who knows the rules, thumbed his nose at them and didn't bother to tell any of the judges, including the two he originally drew, about the related cases.

Some additional information on the very sparse docket entries.
"Some documents "hopefully" soon.

Wow. Guess Van Aryan is gonna have to let Hatfield argue his case for him.

Shouldn't be too hard given it's the exact same case Hatfield is arguing, with zero issues of material fact differing between the two.

Birthers are quickly being reminded of the fact that it is a privilege - not a right - to be admitted pro hac vice, and lawyers that abuse the court system can be denied admission.

In the past all these attorneys were routinely granted admission, now we're seeing the various states and defendants take an active role in contesting admission - and they're winning.

I wonder if, now that Hatfield has decided to run for Senate, if he will start to look for a way out of this mess?

I'm wagering it's for this reason...



Tsk, tsk, ya didn't serve the bar disciplinary counsel, didja Venn? How many birfer lawyers does it take to read simple rules?



Nice of Hatfield to help him through the hoops and hurdles, wasn't it? That's what local counsel is for.

I guess the question should be: Will Hatfield continue to push this.

You know Orly will, but Hatfield has to be worying about shitting too close to where he eats.

If Hatfield is only moderately incompetent, he will realize this is over. O - V - E - R.

Review by SCOGA is discretionary, as is review by SCOTUS. And Georgia votes on Tuesday.

So he can bust his ass to throw paper that will go nowhere, or he can declare the courts corrupt, and make that part of his senate campaign.

Irion:

I mean how much sewage should they have to put up with? I am sure the Judge noticed the smell was increasing and decided to ventilate the building.

Obviously the judge agreed with Jablonski's MTD due to lack of jurisdiction by the SoS and ALJ to hear the challenges in the first place.
That is the proper ruling - she was correcting Malihi's and Kemp's error. But birfers have to whine about being victimized and being treated so
unfair. Its a conspiracy, we are being Discriminated against because we aren't black. Boo Hoo. Thats why we never win.
Send More Money.
If Irion was honest, he'd admit that due to this ruling, his papers in this Appeal for a hearing that should not have occurred are moot,
as are all the case files.

In other words, I think:
"If Venn Aryan knew what he was doing, this wouldn't have happened. Of course, if he knew what he was doing, he wouldn't have filed in the first place."

Is that right?