The Martin case before the Hawaii court is a side threat. But even it is a practical threat Obama needs to address.
The problem with the Berg case is that Berg waited too long to join the real parties (the Secretary of State and the Obama electors); thus the judge can't enter orders until the time to answer has passed. I don't know when that happens--I believe it is likely to be twenty or thirty days after the filing date; and then there will be a hearing.
But what has happened is enough court appearance time with the Judge so that counsel has been made aware that the judge is going to address the issue directly--if Obama has not produced evidence he is eligible, the judge is going to order the Secretary of State to strike him from the ballot and further order the electors not to vote for him.
If I were Obama and thought that would happen the day before the election, I would ignore it on the theory that I was going to win without Pennsylvania. But even a week before the election, it is a problem.
If he is out in Pennsylvania, other states will be forced to look at the legal question. There will be emergency legal proceedings that will get out of control. At best, Obama can't predict what would ultimately happen.
One of the consequences of having permitted the issue to drag out to the end is that there probably isn't time to have an appeal to the Supreme Court, even on an emergency basis. The objective of an appeal would be to kick the case out on procedural grounds (lack of standing; lack of a case or controversy because Obama might lose the election; lack of proper parties etc.) without having to produce evidence he is qualified under Article II, Sec. 1 and without having an order kicking him off the ballot in Pennsylvania.
That's why he is going to Hawaii. And he needs to gear up local counsel to respond to Martin's action before the Hawaii Supreme Court.
I had assumed that on his earlier vacation in Hawaii, he had dealt with the question of what could be done with the Department of Health files--I assume that is how he got the birth certificate number.
Perhaps not. Or perhaps what was learned is that there is something in the Hawaii birth files that proves he was born in Kenya.
Is it possible that he, with the cooperation of the Hawaii Department of Health officials, can make the original vault file disappear? It's probably not in his interest to do that because that is his only evidence he was born somewhere in the US--it's his only answer to the paper record showing he was born in Coast Hospital in Kenya.
There is still another Grandmother in Hawaii issue. She in fact knows where Obama was born. Although it is possible to detect some tension in the relationship, she has obviously committed that she won't blow the whistle. And it is doubtful that she can do anything to support his position that he was born in Hawaii--fake affidavits from 1961 or whatever.
But, she knows. And it has already occurred to counsel that deposing her would furnish significant information. Berg has that in his papers and a Federal District Court has national jurisdiction--so I believe all Berg needs to do is enter an order and take it to Honolulu for enforcement.
Thank you, David. Everyone will want to read your response.
Ping to an important comment.
http://www.freerepublic.com/focus/news/2040486/posts?page=6036#6036
David, from reading your response, I’m under the impression you think this was just filed. Maybe I read you wrong? But this is 30 days out. The Obama team and DNC didn’t respond. The default admissions were filed today.
If the Obama’s bid to be the most powerful man in the history of the world rests upon how his Grandmother will testify under oath, then that in a criminal murder trial might be called motive. Will there be a murder trial? Let’s hope not — rather let’s hope she lives, and does testify honestly.
Thanks David :) Have you read this?
http://www.americasright.com/2008/10/berg-obama-dnc-admit-all-allegations.html
According to Rule 36 of the Federal Rules of Civil Procedure, a party upon whom requests for admissions have been served must respond, within 30 days, or else the matters in the requests will be automatically deemed conclusively admitted for purposes of the pending action.
On September 15, as part of his federal lawsuit contending that the Illinois senator is ineligible, pursuant to the U.S. Constitution, to serve as president of the United States, Philadelphia attorney Philip Berg served Barack Obama and the Democratic National Committee with just such a request. Soon thereafter, on October 6, Barack Obama and the DNC acknowledged service in their motion for protective order, filed in an attempt to persuade the court to stay discovery. The Federal Rules require that a response to a request for admissions be served within the 30-day time limit, and Barack Obama and the DNC have not done so.
Therefore, this morning, amidst news reports that Barack Obama will be suspending his campaign for a few days so he can fly to Hawaii to visit his grandmother, who has suddenly fallen ill, Philip Berg will file two motions in district court in Philadelphia:
A motion requesting an immediate order deeming his request for admissions served upon Barack Obama and the DNC on September 15 admitted by default, and
A motion requesting an expedited ruling and/or hearing on Berg’s motion deeming the request for admissions served upon Obama and the DNC admitted.
Berg contends that the failure to respond and serve the response within the time limit is “damning,” and made two appearances overnight on Rollye James’ talk radio program, the second one coming shortly after midnight, during which he disclosed the meat of today’s filings and the legal and political ramifications of the defendants’ failure to respond.
“They did not file answers or objections or anything else to the request for admissions we served upon them on September 15,” Berg said to me shortly before midnight, noting that Obama and the DNC did in fact acknowledge service of the admission in their motion for protective order. “They knew the admissions were due. They knew they must object or answer specifically in 30 days. Here, they did nothing.”
Typically, requests can be used to ascertain three types of information: (1) the veracity of facts, (2) the authenticity of documents, or (3) the “application of law to fact.” Pretty much anything not privileged is fair game, and while the idea behind such a request is to obtain information, requests for admissions of facts and of the genuine nature of documents are generally not designed as a part of discovery, per se, but rather more of a mechanism used to whittle down proof later in the proceedings.
Unless permitted by the court or allowed pursuant to a written agreement between the parties, the party served with the request must serve a response within 30 days. How serious is a failure to respond? This, from PreTrial, by Thomas A. Mauet:
The automatic provision of Rule 36 makes it a formidable weapon because inertia or inattentiveness can have an automatic, and usually devastating, consequence. Hence, there is one cardinal rule for practice under this provision: Make sure you respond and serve the response within the 30-day period.
Given the “usually devastating” consequence of failure to respond in time to a request for admissions such as those served upon Obama and the DNC on September 15, just what were some of the admissions that Berg asserts Barack Obama and the DNC have, at least procedurally, admitted to?
Admit you were born in Kenya.
Admit you are a Kenya “natural born” citizen.
Admit your foreign birth was registered in the State of Hawaii.
Admit your father, Barrack Hussein Obama, Sr., admitted Paternity of you.
Admit your mother gave birth to you in Mombosa, Kenya.
Admit your mother’s maiden name is Stanley Ann Dunham a/k/a Ann Dunham.
Admit the COLB [Certification of Live Birth] posted on the website “Fightthesmears.com” is a forgery.
Admit you were adopted by a Foreign Citizen.
Admit you were adopted by Lolo Soetoro, M.A. a citizen of Indonesia.
Admit you were not born in Hawaii.
Admit you are a citizen of Indonesia.
Admit you never took the “Oath of Allegiance” to regain your U.S. Citizenship status.
Admit you are not a “natural born” United States citizen.
Admit your senior campaign staff is aware you are not a “natural born” United States Citizen.
Admit the United States Constitution does not allow for a Person to hold the office of President of the United States unless that person is a “natural born” United States citizen.
Admit you are ineligible pursuant to the United States Constitution to serve as President and/or Vice President of the United States.
There are, however, several options for Barack Obama and the DNC at this point. The first, and most obvious, is the fairly watertight argument that pursuant to Rule 26(f), a request for admission may only be served after the conference for the purpose of planning discovery detailed under that rule, and therefore the 30-day time limit on Berg’s request has not yet begun. Here, though, Berg could feasibly argue either that the request for admissions is not a true discovery mechanism and is actually meant to streamline the future need for discovery, or that the defendants’ acknowledged service of the request in their October 6 motion for protective order and failed, at that time, to specifically object or answer. The second option for the defense, still easily foreseen, is that Obama and the DNC could file a motion to withdraw admissions which have been deemed admitted. In order to file a motion to withdraw admissions deemed admitted by default, a party must show (1) “good cause” regarding why there was no response and (2) that such a motion to withdraw would not cause undue prejudice to the plaintiff. Here, Berg could contend that Obama and the DNC failed to meet those standards, that they cannot show “good cause” for failing to answer or object, and that withdrawing the admissions would cause undue prejudice.
Still, for Berg, the issue is clear. He simply wanted answers or objections, he said, and instead received nothing. Rule 36, according to Berg, is fairly cut-and-dry.
“It all comes down to the fact that there’s nothing from the other side,” Berg said. “The admissions are there. By not filing the answers or objections, the defense has admitted everything. He admits he was born in Kenya. He admits he was adopted in Indonesia. He admits that the documentation posted online is a phony. And he admits that he is constitutionally ineligible to serve as president of the United States.”
Allegedly, Obama’s daughters have never actually met granny Madelyn. So, yes, there must be tension in the relationship.
What birth certificate number? If he wasn't born in Hawaii he can't have a Hawaiian BC number, can he? The best he can have in the Hawaii state files would be a filing of his Kenyan birth record.