What would the Rule Nisi cover?

Where it still exists, it's a ruling that becomes effective at a later date, giving the other side time to oppose it.

While there's no direct analogue in modern civil procedure, an order to show cause has some similarities, in that only becoming binding upon a condition subsequent, there is generally an opportunity to challenge it in a timely fashion.

I'd guess in Handel, since it was the candidate challenging the Secretary's exclusion of him from the ballot, that the rule nisi would order that the candidate be placed on the ballot, and set either a date or other condition upon which that rule would become final. Presumably, the Secretary argued unsuccessfully against this and the candidate won.

I believe it then skipped an intermediate appellate level to go directly to the Supreme Court, where the candidate won again.

Here's the Georgia statute:



http://law.justia.com/codes/georgia/201 ... 1/15-13-4/

Basically, if you want the courts in Georgia to order a public officer to do (or not do) something, you need to get the rule nisi & hearing date set. Ordinarily you would be filing a petition for writ of mandamus, but in the case of an election challenge, you would be filing under the specific statutory provisions governing appeal of that challenge -- but the procedure would be the same. It starts with the filing of a petition setting forth the basic facts of the case, reciting the statutory authorization (the elections code provision), and then setting forth the relief sought -- which in this case would be a request that the court order the Secty of State to appear and show cause why he should not strike the name of candidate X from the ballot.

It's all moot now, given the fact that the Judge has dismissed everything based on Jablonski's motion... but the point is that the plaintiffs submitted the wrong type of pleading & named the wrong party.

Among other problems, this meant that they were worried about service of summons whereas prior service would not be required in an election challenge -- the petition would be filed ex parte, the rule nisi would issue, and then the party would serve the petition along with the rule nisi, which would already have a hearing date set.

I'm sure this link must have been posted already here, but I can't find it --- so given that there are at least 3 separate active threads on Fogbow related to the Georgia election challenge, here's a link to Judge Wright's order dismissing the challenges from Jack Ryan's scribd site:
http://www.scribd.com/doc/83539865/GA-2 ... Complaints

Gee, imagine that. Michael Jablonski is vindicated. The court agreed that the ballot challenge statute is inapplicable to a poltical party's nomination(s) for the PPP.

The cool thing is that its appeal-proof, because of the gross incompetence of the plaintiffs and their pretend lawyers. It's in the last paragraph: even if the court's ruling is mistaken in any way, the service is bad.

Ahhh. Another enjoyable Birfer Epic Fail Friday.

Poor Birfers! This is getting to be like shooting fish in a barrel. (NADT)

I'd note that this is a double-victory because we end up with (a) the ALJ's ruling on the merits of the birther claims, accurately characterizing Orly's "evidence" & neatly dispensing with the Vattel 2-ciizen parent argument, together with (b) the Superior Court ruling that a challenge cannot properly be brought against a Presidential candidate in Georgia, either in the primary or before the election itself. Rather nice record to be left with.

(I think the part that Orly misses with her efforts to "certify" a gazillion copies of the Georgia administrative record, is that the only thing of significance, for which certification might be appropriate, is the ALJ ruling... not the evidence or testimony it was base on, much of which the ALJ determined to be inadmissible in any case)

The speed and clarity of the ruling raise again for me the question why ALJ Malihi did not dismiss the circus. What was obvious to Judge Wright should have been obvious to him as well. Does anybody now see a legal basis for Malihi having made this decision? I continue to think that this was an example of a little man trying to make a name for himself in the big leagues. Instead, he gets called "Iranian Muslim."

Just for anyone looking for it at Jack's.

Farrar, Welden, Powell, Swensson - Order Dismissing

That a judge makes a decision that ultimately turns out to be incorrect does not make the judge incompetent. In this case, the statutes were rather complicated and susceptible of more than one interpretation. I do not think the drafters thought of the specific case of partisans of one party attempting to disrupt the primary of another party with fraudulent claims.

It was not just the jurisdictional ruling, based on the statutes, that led to distrust of ALJ Malihi, but other oddities, like failing to rule at all on fairly important parts of Jablonski's motion like contesting the clearly improper addition of other "plaintiffs" who clearly lacked anything resembling standing and, at least for me, the breaking point was the attempt to move the proceedings to a large courtroom explicitly for the purposes of a multimedia extravaganza.

The ALJ might have, entirely in good faith, felt that holding a hearing was mandatory. However, the ALJ had considerable discretion in how that hearing was held and, IMO, abused it. Even if the statute did grant jurisdiction over the Presidential preference primary, a conclusion the Superior Court has rejected for fundamentally the reasons Jablonski and others here have argued, it certainly doesn't grant the jurisdiction for a wide-ranging "evidentiary" hearing on what the Electoral College, Congress and the electorate already decided, that the incumbent President is eligible to run again.

ALJ Malihi went further than even having a hearing on that, instead allowing a total circus in which evidence completely unrelated even to the supposed eligibility issue was allowed in willy-nilly. I can't think of a good motivation for what he did. Perhaps if he had realized in advance what an embarrassment the ludicrous circus he allowed would be, he would not have done it. I hope the lesson of his embarrassment (standard dictionary definition this time) is illustrative to anyone else in the future who considers entertaining this bullshit.

I believe the Indiana elections board took note. The more the birthers stamp their feet in hearings like NH and GA, the less likely it is that they will find receptive audiences in other states.

But of course that's not their only problem.

Liberty Legal said:



I was under the impression that as of this latest ruling, they were done? Wishful thinking on their part or - ?

Thanks. I also still don't understand why he permitted this, but this may be one of Raicha's dead horses.

Or maybe we should wait for his bestselling book When the Circus Came to Atlanta.

Review by SCOGA and SCOTUS is discretionary; if they go that route, all they will get is a terse denial. And Georgia votes on Tuesday, which will moot these challenges.

Of course it is NADT. The fish are shot in the barrel and then released back into the barrel.

I see no reason the Supreme Court of Georgia (appeals of this kind of ruling skip the intermediate level) would be interested in this case. Unless the fact that the SoS effectively ignored the ruling in Terry v. Handel and tried to get a second bite at the apple inspires them to make a definitive statement, or they think the jurisdictional dismissal is wrong, I don't see why they won't just issue a one-page DENINED.

I can't see any reason other than that they want to uphold the Superior Court's ruling for a different reason that they would even address the issue. Even that seems unlikely at this point, and for that matter, will probably be moot before a petition gets to them.

Mais non. Standard Orlylaw calls for a motion for reconsideration, then escalation and a request for letters rogatory. Then the real fun begins.

I think its a little more complicated than that.

I think that to start with Malihi isn't particularly sophisticated on jurisdictional questions -- it is not something he would typically be called up on to decide. So I think he would have seen the issue as already being pre-determined by the Secretary of State referral -- that is, his reasoning would be something along the line that his duty is to make findings of fact for the SoS in an election challenge, and that once there has been a referral, he's supposed to complete his job.

Things tend to be less formal in administrative proceedings, so he's probably quite used to ignoring what he perceives to be technical procedural arguments to get to the part he's good at: holding informal hearings and rendering findings of fact.

I mean, it may be quite common that lawyers raise all sorts of legal and procedural objections during administrative procedures, and he's got a Joe Friday "just the facts" attitude. It might also be fairly standard procedure for him to hold a hearing, let everybody have their say without any input from him, and then he goes back and writes a fairly prosaic & non-controversial ruling.

In his eyes, to have granted Jablonski's motion would have been essentially an act of defiance against the SoS-- that is, Malihi isn't thinking in terms of the legal, jurisdictional issues -- he's thinking, "it's my job to hold a hearing and make findings any time the SoS sends me something, it's somebody else's job to figure out whether I have jurisdiction." So, with that viewpoint, he would see it as better to be mistaken on the law than to do anything that would delay holding the hearing or force the courts to intervene prematurely.

Obviously he lost control of the process with Orly Taitz and the subpenas, but the earlier ruling might have been pragmatic rather than self-aggrandizing.

After reading Wright's Order of Dismissal, I actually still agree with Malihi.

First, though, I want to say that over the previous discussions of the issue, I *have* been persuaded that there may be merit to the argument that Presidential candidates are not "certified" by their parties, and thus wouldn't fall under the statute.

Except that's not the grounds that Wright relied on. She never mentions certification. Instead, she made the following holdings I find questionable:

- Obama is not a "candidate" for President. This, frankly, I find utterly wrong. He may not be a candidate covered by the statute, but saying that he's not a candidate for President is just bizarre, IMO.

- The Presidential Primary is not an "election." Which may be the case, but OCGA 21-2-5(a) doesn't use the word "election." Neither does (c) regarding the removal of names from ballots, or the appeals provision of (d) which she quotes, and the portions of (b) that deal with citizen challenges don't say "election" either.

- The SoS is prohibited by the Fourteenth Amendment from removing a name from the ballot. I honestly can't tell where she even got this from. It's not in Jablonski's Motion. It's not in the statutes she cites. It's not in the Duke v. Cleland case. (Plus, as I've pointed out before, the SoS in other states, like NH, regularly control who appears on a party's Presidential primary ballot, not the party itself.) She appears to have pulled the Fourteenth Amendment argument out of thin air, not given any grounds for it, and cited authority that doesn't support that conclusion.

- She also says Georgia statutory law prohibits the SoS from interfering with names on the primary ballot. She does cite to the Georgia code, but she just references a block of 19 consecutive statutes, without saying where this prohibition appears, much less quoting the supposed prohibition.

Birthers can file all the paperwork they want, but it is doubtful that they even know the correct procedures to file for an appeal.

Of course they won't get anywhere. As others have noted, the issue will be moot as of Tuesday -- and as I noted, the "even if" finding about improper service at the end of Judge Wright's opinion effectively pulls the rug out of any appeal, as there is no need for an appellate court to even reach the election challenge issue.

That's still the thing that stands out to me as the most inexplicable aspect of the entire OSAH proceedings. And not just for standing reasons, but also because they were trying to inject wholly different claims into a limited ballot challenge.

Aha, I see

Thanks for the answers all, makes more sense now. Wishful thinking it is!

So my question is: is one of the things the decision is saying is that Barack Obama is not a candidate before (or until) Tuesday - in Georgia?

I was waiting until I saw something indicating what this "certification" process is, and whether it is meaningful. I am now convinced that it is, largely for the reasons argued by Jablonski in court and CB here. Apparently, "certification" of candidates is a formal process, and is accompanied by a check. The process by which candidates are selected for inclusion on the PPP ballot is somewhat similar, in that the executive committee of the party provides a list of names, but there is no certification and no check.

I have to conclude CB was correct about this and I wasn't.