Links in “Martin v. Lingle”

Andy Martin, Plaintiff pro se in Martin v. Lingle, reports that he has filed a brief in the appeal of his suit:

Law professor Andy Martin is asking the Hawai’i Intermediate Court of Appeals to order the release of Barack Obama’s original, typewritten 1961 birth certificate. “This is a historical document,” says Martin. “Why is Obama hiding the details of his life? Unless he has something to hide? I can assure Obama that the mysteries he likes to generate create a continuing firestorm of paranoia on the Internet about his birth, family and education. Ironically, if there is really nothing to hide, my lawsuit would actually benefit Obama by saving him from his own reflexive, self-destructive secrecy by putting his birth certificate out in the open.” Another format of the brief can be found at www. ContrarianCommentary.com.

The actual briefing follows.

Radio talk show host Rodger Hedgecock points out in a recent interview on EvilConservativeRadio a few reasons why the eligibility issue has not been covered by either the mainstream media or even conservative talk shows is not so much because there is no “there” there to the story, but rather, most people don’t really know where it would go. I found it interesting that he brought up relevant points such as what, exactly, his Occidental College records would show regarding his citizenship status as a student (under the auspices that, while anecdotal, the evidence could show that he was an Indonsian citizen at one time).

Further, Mr. Hedgecock points out — and as I’ve been promulgating for many months — that the main reason why the Judiciary has allowed (for lack of a better term) every petition in Court to be dismissed is due to the fact of the “perfect storm:” there is no law currently in existence that requires any kind of legal enforcement of Article 2, Section 1, Clause 5. Therefore, if a petitioner makes a claim that the President isn’t eligible, and there is nothing that says that the President is legally required to substantiate eligibility, then said petitioners literally have no “standing” from the get-go. Further, even if said petitioners had standing, then exactly how is the Court to rule based on non-existent law?

Many folks in the opposition to questioning the President’s eligibility have gone on for literally thousands of comments on this site about all the reasons why the President is eligible or why questions that folks like I pose are irrelevant. Yet, everyone instinctively knows that nobody really knows who this President is; nobody can point to any physical evidence that is without question to verify who this man is.

The real issue, then, becomes whether one is comfortable with the situation where America has elected its first unknown and unvetted President.

A current listing of grand jury updates and eligibility lawsuits can be found here.

-Phil

No. 29643

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI’I

ANDY MARTIN, 

Plaintiff-Appellant,

vs.

LINDA LINGLE, in her official
Capacity as Governor, et al.,

Defendants-Appellees.

APPELLANT’S BRIEF

ANDY MARTIN
P.O. Box 1851
New York, NY 10150-1851
Toll-free tel. (866) 706-2639
Toll-free fax (866) 707-2639
Plaintiff Pro se – Appellant

INDEX

Statement of the Case 3

Points of Error 5

Standard of Review 6 

Argument 6

I.
THE CLAIM THAT THE CASE SHOULD BE DISMISSED
BECAUSE APPELLANT “FAILED TO SERVE THE DEFENDANTS”
IS AN INSULT TO THE INTELLIGENCE AND REFLECTS
BIAS AND HOSTILITY 6

II.
HAWAI’I OFFICIALS WAIVED SECRECY BY PUBLICLY
DISSEMINATING INCOMPLETE INFORMATION ABOUT
A HISTORICAL DOCUMENT 7

III.
THE CIRCUIT COURT MISCONSTRUED THE STATUTE 9

IV.
APPELLANT HAD STANDING TO SEEK ACCESS
TO HAWAII’ HISTORICAL RECORDS 13

V.
WHY DID THE TRIAL COURT DELIBERATELY AND REPEATEDLY APPLY THE WRONG STANDARD OF LAW? 15

VI.
THE TREATMENT APPELLANT RECEIVED WAS
SHAMEFUL AND HOSTILE 16

CONCLUSION 17

Table of citations

Carlisle v. One (1) Boat, 118 Haw. 107, 185 P.3rd 855 (Haw. ICA 2008)

Estate of Campbell, 106 Haw. 453, 106 P.3rd 1096 (Haw. 2005)

Great American v. Aetna Casualty, 76 Haw. 346, 876 P.2d 1314 (Haw. 1994)

Honolulu Advertiser v. Takao, 59 Haw. 237, 580 P.2d 58 (Haw. 1978)

Ikeoka v. Kong, 47 Haw. 220, 386 P.2d 855 (Haw. 1963)

Uncle John’s vs. Mid-Pacific, 71 Haw. 412, 794 P.2d 614 (Haw. 1990)

STATEMENT OF THE CASE
On October 17, 2008 Appellant Andy Martin (hereinafter “Appellant”) filed a Complaint for Declaratory Judgment with the Circuit Court (R01-R16). Appellant also filed an Emergency Motion for Order to Show Cause (R21-R24).
The Complaint sought access to the original, typewritten 1961 birth certificate of Barack Obama, then a candidate for president of the United States. The Emergency motion sought a ruling because “time is of the essence” to the impending presidential election.
The circuit judge acted on the emergency motion by setting a hearing date after the presidential election (on November 7, 2008, a ruling that is not in the record because that hearing became moot).
After this lawsuit was filed, the defendants, through respondent Fukino, disseminated information that they had examined the “original” birth certificate and it was valid (R50-90, Exhibit A).
The Attorney General (“AG”) filed an opposition to emergency relief, which was already moot, on November 10th (R43-R49). On November 5th the AG filed a Motion to Dismiss (R25-R30) on the grounds that (i) Appellant lacked standing and (ii) Appellant failed to state a claim on which relief could be granted and (iii) Appellant had failed to serve the defendants.
The Appellant filed his proof of service on November 19, 2008 (R93-R95) having hand served the defendants on the same date.
The court conducted a hearing as rescheduled on November 18, 2008. On January 12, 2009 the circuit court filed an order denying the request for “emergency” relief (R113-R116) and dismissing the complaint “with prejudice,” (R117-123) on the grounds that Appellant lacked standing and had failed to state a claim for relief.
Appellant had moved for reconsideration (R96-104) based on the original minute order of denial, and that motion was denied on January 27th (R124-R125). For good measure the circuit judge “sanctioned” appellant because his motion was “unsigned;” in doing so, the court violated its own rule by failing to give prior notice and an opportunity to cure the technical defect.

POINTS OF ERROR
The claim that the president of the United States is entitled to “privacy” of his Hawai’i birth records is an insult to historical scholarly research.
The claim that Plaintiff as an acknowledged expert and author of a book on President Obama, lacked “standing” to conduct historical scholarly research was legally erroneous.
The claim that Appellant had “failed to state a claim” to seek access to Hawaii’s historical records was bizarre.
The claim that Appellant’s lawsuit should be dismissed because he had “failed to serve” the defendants in less than thirty days was abusive and indicative of bias against an out-of-state litigant.
The imposition of a “sanction” by a judge who was violating the very rule he was sanctioning under was further indication of bias and hostility in the trial court.
The trial court deliberately and persistently applied the wrong standard of review the standard of an injunction, to this civil lawsuit.

STANDARD OF REVIEW
Because all of the rulings by the circuit judge were legal, the standard of review is plenary.

ARGUMENT
I.
THE CLAIM THAT THE CASE SHOULD BE DISMISSED
BECAUSE APPELLANT “FAILED TO SERVE THE DEFENDANTS”
IS AN INSULT TO THE INTELLIGENCE AND REFLECTS
BIAS AND HOSTILITY

Appellant would like this Court to rule in his favor on the historical issue, namely that Hawaii’s historical records concerning a president of the United States are indeed historical records and should be open to scholarly research and review. Nevertheless, Appellant would be engaging in false pretenses if he suggested that he felt anything less than the cold chill of bias in the way this case was handled in the trial court.
This lawsuit was filed on October 17th by an Illinois resident.
A month later, the trial court dismissed the action because the Appellant had “failed to serve the defendants,” even though the defendants were served twice, first by the Appellant when he sought emergency relief in October,and then personally served in November long before the court entered any dispositional order.
Unlike Rule 4 of the Federal rules, Hawai’i Rule 4 does not contained a 120-day limit on initial service. Nevertheless, Hawai’i courts have looked to federal rules for guidance. Punishing the Appellant with a dismissal “with prejudice” for not serving the defendants in less than thirty days is abusive and reflects contempt for the appearance of impartiality on the part of the local court.
II.
HAWAI’I OFFICIALS WAIVED SECRECY BY PUBLICLY
DISSEMINATING INCOMPLETE INFORMATION ABOUT
A HISTORICAL DOCUMENT

This lawsuit represents an example of manipulation by the Appellees. On the weekend before the presidential election, defendant Fukino disseminated a de facto “endorsement” of candidate Obama’s birth certificate, saying she had examined the document and it was “valid,” while continuing her refusal to release the actual record so her claims could be examined in context and while refusing to discuss the actual contents and information contained in the document.
With due respect, public officials are not free to manipulate records under their control, playing cat-and-mouse with the public by discussing the document while saying “I can see it but you can’t.” Such behavior constituted a waiver under Hawai’i law.
Hawai’i law clearly recognizes the principle of waiver in civil matters, Uncle John’s vs. Mid-Pacific, 71 Haw. 412, 794 P.2d 614, 616-617 (Haw. 1990), Great American v. Aetna Casualty, 76 Haw. 346, 876 P.2d 1314, 1319 (Haw. 1994). The best analysis of the definition of waiver that falls squarely on the convoluted issues of this case, however, is found at Ikeoka v. Kong, 47 Haw. 220, 386 P.2d 855, 870 (Haw. 1963) in a concurring opinion by Justice Lewis:
‘The question of whether or not a given state of facts brings the case within principles of the law of waiver is not always an easy one to determine. In Pabst Brewing Co. v. Milwaukee, 126 Wis. 110, 116, [105 N.W. 563] a statement of the principles which should govern in such cases, and which meets with our approval, is as follows: ‘It would seem that the more satisfactory ground on which to support the doctrine of waiver is that it is a rule of judicial policy, the legal outgrowth of judicial adhorrence, so to speak, of a person’s taking inconsistent positions and gaining advantages thereby through the aid of courts,–a rule by which, regardless [47 Haw. 249] of absence of any element of estoppel or consideration as those terms are popularly understood, the maxim that one shall not be permitted to blow hot, then with advantage to himself turn and blow cold, within limits sanctioned by long experience as required for the due administration of justice, has been prohibitively applied. * * *” Scott v. Pilipo, 25 Haw. 386, 391.
Dr. Fukino should not be allowed to play “now you see it, now you don’t,” with the public. Her discussion and her direct personal efforts to seek worldwide publicity for her manipulation of the historical record constituted a waiver of secrecy in the mind of any fair-minded and impartial observer.
III.
THE CIRCUIT COURT MISCONSTRUED THE STATUTE
The AG’s submission to the trial court cited the relevant statutory language out of context and sought to turn the broad statutory language in exactly the opposite direction from the express language in the law itself. This legerdemain is unacceptable and should raise the eyebrows of any reviewing court.
Any time a public official cites a statute’s language out of context, a question is raised as to “why?”
The critical statutory language of HRS §338-18(b) that the AG omitted from its Motion to Dismiss states:
(b) The department shall not permit inspection of public health statistics records, or issue a certified copy of any such record or part thereof, unless it is satisfied that the applicant has a direct and tangible interest in the record. The following persons shall be considered to have a direct and tangible interest in a public health statistics record:

The statute then goes on to enumerate the list of persons cited by the AG to the trial court. The AG’s omission of the introductory language to the section cited, when coupled with the AG’s attempts to alter the context of the statutory language, was a serious distortion of the law’s plain language.
Section 338-18(b) merely provides a list of persons who ipso facto are entitled to have a direct interest; by no reasonable reading can this language support the AG’s argument in the trial court that the list following the preamble is exclusive instead of exemplary.
The term “direct and tangible interest,” moreover, is not defined in the statute even though other critical terms are, see HRS §338-1. The omission of a definition of the term “direct and tangible interest,” when considered in the context of 338-1, shows conclusively that the legislature did not intend for the exemplars provided in the statute to be a self-limiting and exclusive list of persons entitled to access.
Indeed, the statute itself provides an open-ended opportunity for access in 18(b)(9) by vesting a state court with untrammeled and unrestrained authority to order access to any person on such terms as the court considers just and appropriate. No one can reasonably argue that 338-18(b)(9) in any way constrains or places any limiting language on the common law and common sense authority of a court to grant relief.
In the absence of a statutory definition for “direct and tangible interest,” this court is left on appeal to fashion a definition or interpretation out of common language and common sense. As this Court stated in Carlisle v. One (1) Boat, 118 Haw. 107, 185 P.3rd 855, 860 (Haw. ICA 2008):
A. Statutory Interpretation-Civil
Questions of statutory interpretation are questions
of law to be reviewed de novo under the right/wrong
standard.
Our statutory construction is guided by the following well-established principles:
[When construing a statute,] our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.
In construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.
This court may also consider the reason and spirit of the law, and the cause which induced the legislature to enact it to discover its true meaning.
Lingle v. Hawai‘i Gov’t Employees Ass’n, AFSCME, Local 152, 107 Hawai‘i 178, 183, 111 P.3d 587, 592 (2005) (internal quotation marks, brackets, and ellipses omitted) (quoting Guth v. Freeland, 96 Hawai‘i 147, 149-50, 28 P.3d 982, 984-95 (2001).
Is the underlying Health Act ambiguous? Appellant would argue that it is not. The statute clearly provides a list of persons or entities that are automatically entitled to access, but nowhere does the law state that the list is exclusive.
The statute itself contains in Subsection (9), a wide-open grant of jurisdiction to order access to records based on any terms the Court finds just and reasonable. Nowhere is the court’s power under Subsection (9) limited or confined. Clearly, the legislature was anticipating precisely such a case as this one, where a legitimate author and columnist seeks access to what have now become vital records in American history.
The Hawai’i Supreme Court decided an issue similar to the instant one, namely how to construe a general statute, in Estate of Campbell, 106 Haw. 453, 106 P.3rd 1096, 1101 (Haw. 2005)(“Campbell”). where the Court stated:
Whether Appellants constitute “interested persons” as defined in HRS § 560:1-201 is a matter of statutory interpretation and therefore a question of law subject to de novo review. Ing v. Acceptance Ins. Co., 76 Hawai’i 266, 874 P.2d 1091 (1994). As oft-stated, “our primary duty [when interpreting statutes] is to ascertain and give effect to the intention of the legislature, which is obtained primarily from the language of the statute itself.” Id. at 270, 874 P.2d at 1095. We have also noted on several occasions that “where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning.” Id. (citing AIG Hawaii Ins. Co. v. Estate of Caraang, 74 Haw. 620, 634, 851 P.2d 321, 328 (1993)). In this case, the language of the relevant statutes is plain and unambiguous.
Plaintiff submits that the statute sub judice is equally “plain and unambiguous” in (i) placing no limits on the categories of persons entitled to access to records and merely providing an exemplary list of persons who receive automatic a priori access, and (ii) allowing a court to exercise its general jurisdiction concerning access determinations, as provided by Subsection (9).
For purposes of this lawsuit, the Supreme Court also noted that the general grant of jurisdiction under HRS §603-21.9 could be read in pari materia with Subsection (9) of the Health statute. 106 P.3rd 1107 fn. 21.
Any reasonable construction of the statutory language would yield ineluctably to the conclusion that the legislature has provided broad powers to any court to allow access on terms the court believes are just and reasonable. The arguments advanced by the AG and accepted by the trial court shut the doors on historical research in Hawaii’s government archives.
IV.
APPELLANT HAD STANDING TO SEEK ACCESS
TO HAWAII’ HISTORICAL RECORDS

The appellant is a recognized authority on Barack Obama. He has written a book that is in the record (R for November 17, on “bulky shelf”). Appellant’s work is so highly regarded he has been cited by other bestselling authors.
Bona fide members of the media and authors such as Plaintiff enjoy a qualified constitutional and common law right to access vital public records. That general principle applies a fortiori to historical records concerning a president of the United States.
The common law/constitutional right to access vital public records was explicitly set forth in two directly applicable Hawai’i Supreme Court cases, Honolulu Advertiser v. Takao, 59 Haw. 237, 580 P.2d 58 (Haw. 1978)(“Takao”), and Estate of Campbell, 106 haw. 453, 106 P.3rd 1096 (Haw. 2005)(“Campbell”).
Because the term “direct and tangible interest” is not defined in the statute (see Part IV, supra), this Court can look to Takao, where the Court stated that “We construe the phrase ‘any party’ to mean any person who seeks the transcript for a legitimate and proper purpose.” 580 P.2d 61. Here, Plaintiff seeks access to the original typewritten 1961 COLB for what are facially “legitimate and proper purposes.”
Takao establishes an unequivocal common law right to copy public records, 580 P.2d 61. The common law right is critical because in Campbell the Supreme Court underscored that its decision rested on the common law and did not need to go to the extent of making a constitutional determination, 106 P.3rd 1108 fn. 26:
Additionally, inasmuch as our policy of judicial openness is rooted in the common law, see Takao, 59 Haw. at 239, 580 P.2d at 61 (concluding that the “public does generally have the right, established by the common law, to inspect and copy public records and documents, including judicial records”), we need not reach the issue of whether the right of access is also protected under both the federal and our state constitutions.

To claim that Appellant lacks “standing” to conduct historical research about the president of the United States in Hawai’i archives demeans this state and makes the state and its government officials look petty and provincial.
V.
WHY DID THE TRIAL COURT DELIBERATELY AND REPEATEDLY APPLY THE WRONG STANDARD OF LAW?

On October 17th, the Appellant sought issuance of an “order to show cause” (R21-R24) based on an upcoming election. The election passed. Despite the fact that the election was over, and the trial judge himself corrected his own rulings to state “president-elect,” the judge steadfastly refused to apply a normal standard of review and persistently insisted on applying to this lawsuit a standard concerning issuance of an injunction.
At no time did Appellant ever seek an injunction. The mere request for a pre-election “order to show cause” obviously became moot after the election. Despite that fact, this entire lawsuit was deliberately decided under the wrong standard of law, i.e. the standard applying to injunctions, when this lawsuit never sought an injunction.
Why did the trial court persistently apply the wrong standard of review?
VI.
THE TREATMENT APPELLANT RECEIVED WAS SHAMEFUL AND HOSTILE
This lawsuit and this appeal are about access to Hawaii’s historical records about the president of the United States. It is not a recusal battle. Nevertheless, when a judge imposes a “sanction” because appellant failed to sign a motion, and the rule the judge was sanctioning under required prior notice to a party before imposition of a sanction, the utter hostility of the trial court is painfully, and embarrassingly apparent.
Because this appeal involves pure statutory construction and review of a legal, as opposed to factually disputed, record this Court need not remand. The Court should decide the issues presented, as this Court is authorized to do, and direct release of the records in question.

CONCLUSION
Barack Obama is president of the United States. His records while living in Hawai’i are the now records of American history (as they were on November 19, 2008 when the “hearing” in this case was conducted). To claim that Hawai’i wants to protect the “privacy” of presidential records is an obviously absurd position that brings the judicial system into disrepute.
Secrecy laws were intended to protect the privacy of private citizens, not presidents. As a newspaper article submitted separately to this Court through the Clerk suggests, the president does not have traditional or standard privacy rights. Even if those privacy rights existed as to intimate matters, such as a loathsome disease or other issues traditionally taught in law school, “privacy” as a concept cannot logically be stretched to include restriction of historical access to a neutral and objective document: a birth certificate.
Most respectfully, this Court is asked to reverse the action of the trial court, and to decide the merits of Appellant’s claims by directing prompt release of any and all Hawai’i records concerning the president of the United States.

Respectfully submitted,
ANDY MARTIN

Andy Martin, Plaintiff of Martin v. Lingle, today sent out the following press release via email of a letter he is sending to Hawaii Attorney General Jill T. Nagamine asking for a rehearing and a new judge:

I am going to prepare a new motion for rehearing and ask that the judge be recused for bias and that the matter be reheard by a new judge. The issue of the cover-up of official documents by apparently corrupt and conspiratorial judges and lawyers, and other local officials in Hawai’i, is not going to go away, not today, not next week, not ever. Justice must not only be served, justice must appear to be served.

The full presser follows…

January 6, 2009

Jill T. Nagamine
Deputy Attorney General
425 Queen Street
Honolulu, HI96813
via fax (808) 587-3077

with copy to:

Hon. Bert I. Ayabe
Circuit Court
777 Punchbowl Street
Honolulu, HI96813-5093
via fax (808) 539-4108

Re:
Martin v. Lingle
Circuit Court No. 08-1-2147-10-BIA

Dear Attorney Nagamine:

This will respond to your cover letter and proposed order of today’s date.

I am getting the creepy feeling that the Hawai’i courts are operated as a secret society. You sent me a proposed ruling on my motion for reconsideration, and I have not even been advised the motion has been addressed and ruled on. How do you know what is going on before I do? The motion to reconsider was unopposed by your office. It should have been granted as an unopposed motion. Now there is some form of communication between your office and the judge, to which I am not a party. Not a party indeed.

Judicial proceedings should not only be fair and impartial; they should appear to be fair and impartial. The proceedings involving manipulation of Hawai’i's official records do not even remotely pass the smell test. The entire nation has been horrified by the abusive treatment I have received in Hawai’i.

Your proposed order makes the false claim that I neglected to sign my motion for reconsideration. I did no such thing. I signed it.

Furthermore, I do not even know at this point who the opposing lawyer is: you or the judge. Even if through some oversight there was an unsigned motion, that oversight was waived by your lack of a response or lack of any opposition. That is how a local lawyer’s oversight would be treated. I am receiving invidiously discriminatory treatment.

The judge seems to be acting and lead counsel in the cover-up of Obama’s birth certificate and raising issues that you have failed to raise or waived. In other words, the judge is not acting as a judge; he is acting as an “activist seeking combat” and trying to act proactively to feed you objections. That is not the proper role of a judicial officer. Therefore, your unsupported claim that I failed to sign my motion is both an outrageous accusation and apparent evidence of judicial bias against an out-of-state litigant.

I find the treatment afforded me as a respected writer seeking access to a historic document as bearing the obvious taint of corruption and conspiracy. I do not feel I have even remotely been afforded a neutral forum.

I am going to prepare a new motion for rehearing and ask that the judge be recused for bias and that the matter be reheard by a new judge. The issue of the cover-up of official documents by apparently corrupt and conspiratorial judges and lawyers, and other local officials in Hawai’i, is not going to go away, not today, not next week, not ever. Justice must not only be served, justice must appear to be served.

When a judge says he is protecting the “privacy” rights of the president-elect of the United States, who has waived any privacy by posting a facsimile of the document on the Internet, the judge is making a joke of the judicial function and trivializing a good faith effort to invoke Hawai’i law.

The suspicious behavior of Hawai’i officials is doing incalculable damage to the administration of Barry Obama. The election eve “verification” that a secret document existed was a bald-faced political act by a supposedly impartial professional official. Do you think we are all stupid on the mainland?

We need to know who this man is. His birth certificate from 1961 obviously contains hidden horrors. Otherwise, why should there be such resistance to public access for a historic document?

I am going to fight this corruption and abuse of the judicial system in Hawai’i.

I began fighting judicial corruption in Illinois over forty years ago as a young law student; it looks like I will now have to add a new state to my list of crooked judicial systems, Hawai’i.

Respectfully submitted,

ANDY MARTIN

AM:sp

-Phil

Andy Martin, as Plaintiff in Martin v. Lingle, sought to have the Hawaii Circuit Court to grant him access to Barack Obama’s original, 1961 “vault” copy birth certificate. On November 18, 2008, shortly after the Court agreed to take the case under consideration, the Court granted the Defendants their motion to dismiss the case.

Full text of the Minutes (Case 1CC08-1-002147) available below…

From americamustknow.com:

THIS COURT TREATED THE EMERGENCY MOTION FOR ORDER TO SHOW CAUSE AS A MOTION SEEKING EMERGENCY INJUNCTIVE RELIEF AS PLAINTIFF WAS SEEKING TO OBTAIN THE BIRTH RECORDS FOR PRESIDENT OBAMA.

 
FIRST, THE COURT POINTS OUT THAT THE ISSUANCE OF A PRELIMINARY INJUNCTION SEEKS EXTRAORDINARY RELIEF.

 

IN HAWAII, A 3 PRONG TEST IS APPLIED IN DETERMINING WHETHER PRELIMINARY INJUNCTIVE RELIEF SHOULD BE GRANTED AS STATED IN LIFE OF THE LAND V ARIYOSHI, 59 HAW. 156 (1978). THE 3 ELEMENTS ARE:

 

1. IS THE PLAINTIFF LIKELY TO PREVAIL ON THE MERITS?

 

2. DOES THE BALANCE OF IRREPARABLE HARM FAVOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER OR INJUNCTIVE RELIEF, AND

 

3. DOES THE PUBLIC INTEREST SUPPORT THE GRANTING OF THE INJUNCTIVE RELIEF SOUGHT?

 

AFTER REVIEWING THE PLEADINGS, THE MOTION FOR ORDER TO SHOW CAUSE, THE MEMORANDA OPPOSING THE MOTION, THE EXHIBITS, AND OTHER WRITTEN SUBMISSIONS, AND CONSIDERING THE ARGUMENTS OF COUNSEL AND PLAINTIFF, PRO SE, THE COURT FINDS AS FOLLOWS:

 

BASED ON THE LIMITED AMOUNT OF EVIDENCE PRESENTED, THE COURT FINDS THAT IT IS UNLIKELY THAT PLAINTIFF WILL PREVAIL ON THE MERITS AS IT APPEARS THAT THE PLAINTIFF DOES NOT HAVE A DIRECT AND TANGIBLE INTEREST IN THE VITAL STATISTIC RECORDS BEING SOUGHT, NAMELY THE BIRTH CERTIFICATE OF PRESIDENT OBAMA. PLAINTIFF ALSO DOES NOT FALL WITHIN THE CATEGORY OF PERSONS WHO MAY BE ENTITLED TO THE RECORDS AS ENUMERATED IN HRS 338-18(B). IN ADDITION, HRS 92-13 PROVIDES THAT DISCLOSURE OF GOVERNMENT RECORDS IS NOT REQUIRED WHICH, PURSUANT TO STATE LAW, ARE PROTECTED FROM DISCLOSURE.

 

REGARDING THE SECOND ELEMENT OF IRREPARABLE HARM, THE COURT FINDS THAT PLAINTIFF HAS NOT PRESENTED ANY EVIDENCE TO THIS COURT THAT IRREPARABLE HARM WILL OCCUR IF THE RECORDS ARE NOT PROVIDED TO THE PLAINTIFF.

 

IN ADDITION, THERE IS INSUFFICIENT EVIDENCE TO INDICATE THAT THE PUBLIC INTEREST SUPPORTS THE GRANTING OF THE RELIEF SOUGHT AND THERE IS A REASONABLE BELIEF THAT THE PUBLIC WOULD RATHER PRESERVE THE CONFIDENTIALITY OF VITAL HEALTH RECORDS.

 

THEREFORE, THE EMERGENCY MOTION TO SHOW CAUSE IS DENIED. DEFENDANTS’ COUNSEL TO PREPARE FINDINGS OF FACT AND CONCLUSIONS OF LAW.

 

IN ADDITION, THE COURT GRANTS DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR THE REASONS STATED IN THE PRIOR RULING AS WELL AS FOR THE REASONS RAISED IN THE MOTION AND SUPPORTING MEMORANDA, INCLUDING LACK OF STANDING AND INSUFFICIENT SERVICE OF PROCESS ON THE DEFENDANTS.

 

DEFENDANTS’ COUNSEL TO PREPARE ORDER.

 

***A COPY OF THE MINUTE ORDER WAS PLACED IN ATTORNEY COURT JACKET FOR; JILL NAGAMINE AND A COPY MAILED TO MR. ANDY MARTIN.***

It’s interesting that the Court calls Barack Obama “President Obama,” not “President-Elect Obama” or the like. Also, notice the statement “…there is a reasonable belief that the public would rather preserve the confidentiality of vital health records.” In my opinion, clearly this Court does not understand — and Andy Martin did not properly convey the importance of — the office of the Presidency, that it has certain eligiblity requirements that other officeholders do not have to meet.

One battle down, but the war is clearly still on (Berg v. Obama, Donofrio v. Wells).

-Phil

Late this morning in HI Circuit Court, Mr. Andy Martin had his case heard (Tuesday, November 18, 2008: Andy Martin v. Hawaii Governor Linda Lingle – 1CC08-1-002147). The link to the HI Court System is here; you will have to search on “Andy Martin” and navigate through to the Minutes notes (I’d recommend using Internet Exporer or Netscape). The following is what you will see…

 

Court Minutes Text   Case Title:  ANDY MARTIN VS LINDA LINGLE ETAL 1CC08-1-002147   Div.:  1C21      CM      DATE: 11-18-2008 Time: 1030A Priority: 0 Judge I.D.: JBAYABE Video No.:  Audio No.: 

Minutes:

*********COURT REPORTER PHYLLIS TSUKAYAMA********* (10:38:15-11:16:46) CT CLK: K. MORIYAMA APPEARANCES: ANDY MARTIN, PRO SE PLAINTIFF JILL NAGAMINE/HEIDI RIAN F/STATE OF HAWAII AFTER HEARING FROM COUNSEL AND ARGUMENTS MADE, COURT TO TAKE THIS MATTER UNDER ADVISEMENT. HEARING CONCLUDED       Â

 

Since the judge did not dismiss the motion out of hand, this could be perceived as good news. I’ll be monitoring to see what Mr. Martin officially says about the matter.

-Phil

Andy Martin, Plaintiff pro se in Martin v. Lingle, reports that his case is moving forward:

Hawai’i appeal on Obama’s missing 1961 typewritten birth certificate is proceeding.

Intermediate Court of Appeals sets briefing schedule: Andy Martin’s brief due May 24th. “We will be on time,” says Andy.

No. 29643

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI’I …

First Circuit Court
Civil No. 08-1-2147
Hon. Bert I Ayabe
Appeal from the Order Denying Motion for reconsideration of the Court’s order of November 19, 2008

Also, a blog from The Spokesman-Review seems to know the status of the documents that Dr. Taitz handed to Chief Justice John Roberts in Idaho:

Reader John W. Snyder Jr. wrote recently to find out whatever happened to the documents Chief Justice John Roberts got down in Moscow, Idaho, on President Obama’s birth certificates. (If that made you say “Huh?”Catch up at this link.)

Here’s the update:

Copies of Dr. Orly Taitz’s documents were forwarded to the Supreme Court clerk’s office, but were sent back because they weren’t in a form the court could accept, a spokeswoman for the court said. The court suggested they be resubmitted in a form that could be accepted.

Dr. Taitz confirmed Wednesday she got the documents, and the letter from the clerk. She takes some issue with what the court is suggesting. . .

… It’s a bit of a complicated legal argument, but to boiled down, it goes like this:

She wants to file the case Quo Warranto, which would mean that Obama would have the burden of proof to show that he was born in the United States. The court is suggesting she file either for a writ of mandamus or for a writ of certiorari, which would put the burden of proof on her and her clients to prove that he wasn’t. She said quo warranto cases are usually filed by government entities, so she’s trying to get the U.S. attorney general’s office or various state attorney general’s offices to file that type of case. In the mean time, she expect to file for “cert” this week.

One of the state’s where she’s seeking the assistance of the state attorney general is Washington. Doesn’t sound like she’s going to get it, however. 

 

If I were to recommend anything to Dr. Taitz, it would be this: If you are going to file a case quo warranto, then get the advice of anyone who has either done it before or who knows the theory — the rules — of doing such. Simply handing a document over to an officer of the Supreme Court (in this case, the Chief Justice) doesn’t guarantee anything except that you’ve handed paperwork to somebody. Nothing official can actually come of it unless it follows established protocol.

While activism is good and one should pursue every available avenue to correct a perceived wrong, in order to be effective, it must be correctly focused. Otherwise, one is wasting their time and energy and will get nowhere.

-Phil

Andy Martin, Platinff of Martin v. Lingle, today posted that the Circuit Court of Hawaii “erred” in its refusal to release Barack Obama’s birth certificate. Below is the full motion, per his presser…

CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAII

CIVIL NUMBER:
08-1-2147-10-BIA
(Declaratory Judgment)

ANDY MARTIN,
Plaintiff,

vs.

LINDA LINGLE, in her
Official capacity as Governor
Of the State of Hawai’i,
DR. CHIYOME FUKINO, in her
official capacity as Director
of the Department of Health,

Defendants.
_________________________________

MOTION FOR RECONSIDERATION OF COURT’S
ORDER OF NOVEMBER 19, 2008

Preliminary Statement

The Court managed to take what is at its core a simple and straightforward case seeking review of denial of access to a Hawai’i record, and to add layers of confusion and complexity that were totally unwarranted by the record made in open court on November 18th. For the reasons that follow, Plaintiff moves the Court to reconsider, vacate and rehear the matters decided on November 19th using the correct procedures and standards of law.
Plaintiff initially thought that he would appeal the order to the Intermediate Court of Appeals, but it would be a disservice to that Court to appeal such a mangled and needlessly confused record from the trial forum. Thus, the Rule 59 motion (see below) stays any appeal until a decision on this motion.

1. Procedural basis for reconsideration

Plaintiff is not aware if a judgment has been entered since he has not been served with any such document. Prior to entry of a judgment a Court has plenary power to review and reconsider an order. This motion is also filed under H.R.Civ.P. 59.

2. The Court applied an imaginary standard
to plaintiff’s motion

Plaintiff’s motion is attached as exhibit A. Plaintiff sought access to a birth certificate after denial by the defendants. In no place did the Plaintiff ever mention the word “injunction” and nothing in Plaintiff’s motion constituted a request for a temporary injunction. A temporary injunction is a remedy usually entered to preserve the status quo. Plaintiff was not seeking the preservation of any status quo. He was seeking review of denial of access to a historic public record, and asked the Court to expedite the matter based on both a lack of a factual dispute and intense national interest in the document. Neither of these issues converted a review proceeding into an injunction matter.
Despite the lack of any pleading seeking injunctive relief, the Court mischaracterized plaintiff’s motion for review of denial of access as an “injunction” and then applied the heightened standard applicable to injunctive proceedings as a pretext to dismiss the action. This was clear error and a serious abuse of discretion.
For the court to create an imaginary request for an injunction and then deny that imaginary request deprived Plaintiff of due process of law.
Thus, the entirety of the Court’s order is void for want of due process and must be reheard under a correct standard of review. The Court’s behavior clearly “exceeded the bounds of reason [and] disregard rules or principles of law or practice to the substantial detriment of a party litigant.” Amfac v. Waikiki Beachcomber, 74 Haw. 85, 839 P.2d. 10, 26 (Haw. 1992).

3. The Court decided a nonexistent standing issue

Plaintiff sought access to a historic document on two grounds: (i) a Health statute vesting as court with authority to direct release, and (ii) the Hawai’i UIPA. Both the statute, which vests the court with discretion to hear requests for access, and the UIPA, provide for review by this Court. There is thus a statutory grant of standing to seek review of a denial of access.
There is no “standing” issue in this lawsuit. Plaintiff does not need to show “injury” to seek access to a historic Hawai’i record. The AG’s claim was complete nonsense. Why the Attorney General sought to garbage-up the record with bogus standing claims is a question that should concern the court. Why the Court threw in standing as an afterthought as a basis for dismissal, when there is no such issue, is bizarre.

4. Service of process was timely made

This lawsuit was filed in mid-October. Plaintiff sought to expedite the proceedings because of the intense national interest. He lives in Chicago. He is based in New York, some 8,000 miles from the forum. The Court entered an order to show cause why the relief sought should not be granted. Defendants claimed they had not been served (which has no bearing on an order to show cause, which they admitted had been served; at hearing they admitted they had also been served with the original pleadings on October 17th). After defendants objected and demanded service a second time, Plaintiff served the defendants and filed his proof of service on November 19th. Thus, there was not the remotest basis for dismissal on the basis of failure to serve the defendants.
The Court’s apparent attempt to impose thirty days as a basis for dismissal is an unreasonable period to impose on Plaintiff to serve defendants a second time when he is an out of state litigant. Plaintiff was well within the applicable time limits when he served the defendants and no reasonable person could argue to the contrary.

5. The court ignored the state of the record

Plaintiff was seeking review of a denial of access to a historic public record. As Plaintiff set forth, there was a serious waiver issue, since the parties themselves had discussed the document openly, and the “document” has falsely been portrayed as already being disclosed. The Court ignored the waiver issue. Based on the lack of any response by the defendants, waiver mandated release of the document.

Conclusion

At a certain point, the comulatative errors in this proceeding raise an inference of harassment of an out-of-state litigant. Under the Privileges and Immunities Clause, a non-Hawai’i resident should obtain the same due process that a native or resident receives. Hawai’i is not a private club that is maintained for the benefit of insiders.
Plaintiff came before the Court in good faith seeking access to a historic document. There is not a shred of evidence in the record to defeat his claim. The court’s constant mischaracterization of his claims and misapplication of the rules constitute a breach of judicial decorum.
The dismissal should be vacated and the matter should be heard before a judge who will faithfully and fairly apply the law. If this Court honestly disagrees with Plaintiff’s arguments, it should simply say so and send a clean record to the ICA, and not try to create cobwebs to conceal legerdemain and prevarication based on an attempt to evade the obviously applicable facts and principles of law.

Dated: New York, NY
October 25, 2008
Respectfully submitted,
ANDY MARTIN
Plaintiff Pro se

In responding to his case, Martin v. Lingle, Mr. Martin released the following statement on the Internet yesterday evening, Hawaii time…

(HONOLULU)(November 18, 2008) Aloha from Hawai’i.

A Honolulu circuit judge heard vigorous arguments in the lawsuit filed by Obama author Andy Martin. Martin is seeking access to Barack Obama’s original, typewritten 1961 birth certificate. The judge reserved judgment.

“We had about a half-hour hearing,” Martin states. “Both the Attorney General and I vigorously presented our respective positions. The Court gave no indication of when or how the ruling could come or what the result will be.

“I have ordered a transcript of the hearing and as soon as it arrives we will post it on our blogs. People should be able to read the arguments in Court. Rather than characterize what was said, I will allow everyone to review the presentation for themselves.

“Tuesday afternoon through the gracious assistance of a local supporter I was able to visit the National Cemetery where the ashes of Barack Obama’s grandfather are interred. The Punchbowl Cemetery is very still, and very moving. I am always brought to deep emotion by the graves of the unknown, known only to God, who answered the call and gave their lives in our service. The famous war correspondent Ernie Pyle is also buried at Punchbowl.

“Sadly, there was no ornamentation or remembrance at the plaque of Stanley Dunham. Obama’s memorialization of his family members seems to be limited to the occasional photo op. I hope to have a detailed column on Madelyn Dunham’s memorial as soon as possible, but Wednesday we will be busily working away in the Courthouse again. We are trying to utilize our time in Honolulu as intensively as possible.

“Wednesday at 5:30 P.M. we will launch our National Conversation on the Future of America under Barack Obama and the future of the anti-Obama movement. We will issue details late Tuesday night. Anyone wanting to attend can just show up.

“We will be taking the National Conversation around the country, to South Florida in November, and Northern and Southern California in December, to anywhere and everywhere people are interested. But we thought we would try our best to launch these informal meetings in Hawai’i, where Obama began, and where the movement to remove him from office in 2012 should also begin.

“All are welcome to join us for a free form discussion,” Martin stated. “If anyone who was in court Tuesday shows up, they can deliver their own impression of what happened.”

Andy Martin, attorney and Plaintiff in Martin v. Lingle, on March 28 made the following motion to expedite his case in the Hawaii Intermediate Court of Appeals:

Andy Martin says a pending appeal raises constitutional and scholarly issues about Barack Obama’s past. The Hawai’i Intermediate Court of Appeals is being asked to expedite an appeal seeking release of Barack Obama’s original, typewritten 1961 birth certificate. Andy Martin says scholars have a right to access historic documents of the American presidency. The Hawai’i Attorney General opposes release. Martin will convene a National Conference on Barack Obama’s Missing Birth Certificate, in Washington April 3-4. See http://www.nationalconferenceonobama.blogspot.com/

THE MOTION…

ANDY MARTIN, J.D.
Post Office Box 1851
New York, NY 10150-1851
Toll-free tel. (866) 706-2639
Toll-free fax (866) 707-2639
Appellant pro se

IN THE

IN THE INTERMEDIATE COURT OF APPEALS OF HAWAI’I

ICA DOCKET NUMBER: 29643

ANDY MARTIN,

Appellant,

HON. LINDA LINGLE, in her
official capacity as Governor;
DR. CHIYOME FUKINO, in her
official capacity as Director
of the Department of Health,

Appellees.

______________________________

MOTION TO EXPEDITE APPEAL

1. Although appellant is proceeding pro se and is not an expert in Hawai’i appellate procedure, he does have considerable experience with appellate tribunals.
The instant appeal poses an important question of national public policy and historical inquiry: should Hawai’i officials be required to make available for biographical research and scholarly inquiry the original, typewritten 1961 birth certificate of President Barack Obama?
2. Appellant has written one book on Barack Obama, Obama: The Man Behind The Mask, which is (or should be) part of the record on appeal, has conducted extensive original research in Hawai’i and is preparing to author a second book on the president. Appellant in sponsoring a national conference on missing records involving the president, www.NationalConferenceonObama.blogspot.com.
3. With all due respect to the district Judge, it is difficult to see how a basic historical record, the original “ribbon” copy of the birth certificate of the President of the United States, can or should be concealed from scholarly inquiry or the American people.
4. Appellant has been in contact with the Hawai’i Attorney General and that office opposes expediting this appeal, see attached.
5. Because there is a time lag between filing in this Court and Appellant receiving Notice, he does not know if the record on appeal has been filed yet. In any event, the record is due to be filed or has been filed.
6. This appeal represents review of a straightforward question of law. There was a single hearing in the district court; on information and belief there were and are no disputed questions of fact.
CONCLUSION
Most respectfully, Appellant asks this Court consider the historical significance of this litigation, and to enter an order setting an expedited briefing and argument schedule.

Respectfully submitted,

ANDY MARTIN

CERTIFICATE OF SERVICE

I certify I have served opposing counsel as follows:

Jill T. Nagamine, Esq.,
Deputy Attorney General
425 Queen Street
Honolulu, HI 96813
via Fax (808) 587-3077

on March 28, 2009.

A current listing of eligibility lawsuits can be found here.

-Phil

Mr. Andy Martin, Plaintiff in his case Martin v. Lingle, today vowed to appeal the Hawaii Circuit Court’s Dismissal to the Hawaii Intermediate Court of Appeals…

Presser:

FOR IMMEDIATE RELEASE:

INTERNET POWERHOUSE ANDY MARTIN PLANS TO APPEAL DISMISSAL OF BARACK OBAMA’S BIRTH CERTIFICATE LAWSUIT, SAYS HE HAS NOT YET RECEIVED A COPY

MARTIN SAYS JUDICIAL SYSTEM REFLECTS “CALLOUS DISREGARD” FOR THE AMERICAN PEOPLE

(NEW YORK)(November 21, 2008) For those of you who are not familiar with the peculiar highways and byways of the judicial process, welcome to the strange ways of the court system in Hawai’i. Apparently my lawsuit in a Honolulu state court has been dismissed.

Unfortunately, I have not seen a copy of the decision. Despite the significance of the court order, I was not given a courtesy notice when it was entered in Honolulu, apparently late Wednesday, although I was in Honolulu all day on Wednesday.

Thursday all day I was traveling back to New York and was unavailable. I did not get back to New York until 8:00 A.M. Friday.

I was alerted by a reader’s e-mail that something had happened, and went to the Honolulu Advertiser’s web site where I found a complete story, http://www.honoluluadvertiser.com/article/20081121/NEWS20/811210355/1001/localnewsfront.

Obviously I was unable to respond to phone calls while in the air, and when I checked my e-mails today the Advertiser reporter had not left a phone number to call him back.

The Court did not fax my office a copy and so I have no immediate way of seeing a copy of the decision. I assume the Advertiser’s news report is a fair summary of the decision.

Depending on what the response is to a fund appeal, I will certainly appeal this decision to the Hawai’i Intermediate Court of Appeals. The trial court’s interpretation of the relevant statute appears to be a wooden reading of the law. The claim that there is a lack of historical significance to the birth certificate of a president of the United States is a classic example of how utter nonsense can exist in the judicial system.

I will solicit input from my audience as to whether they feel that pursuit of the appeal is a worthwhile venture and will proceed accordingly.

I understand how 150 million Americans are frustrated by the callous disregard which the court system has shown for access to vital, basic information about Barack Obama, the “mystery man” who has been elected president by the “Mainstream Media of the United States.”

However other than this mild criticism, I believe it is more appropriate to proceed through the judicial process, and that is the course I intend to follow on the issue of access to Barack Obama’s original, typewritten 1961 original birth certificate.

More information has been released on a number of fronts (thanks, americamustknow.com!) concerning the various Secretary of State lawsuits going on around the nation…

Hawaii:

You can read the latest in the Martin v. Lingle category. I will be putting together Mr. Martin’s latest thoughts in a posting shortly after this one.

Electoral College:

The effort that has been underway to send letters to Electors continues. To date, there are currently volunteers helping out in 41 of 50 States, and you can see which States’ Electors have been contacted here.

California:

As previously posted here, the August, GA NBC affiliate released a small but cogent posting on their website. This bit of news is now making the rounds in the blogosphere RE: Keyes v. Bowen.

New York:

Dan Smith’s information gathering continues in the great State of New York; however, to date, he’s not pursuing the matter, opting instead to watch other cases and learning from the results.

-Phil