Posted on 07/08/2009 6:09:43 AM PDT by real_patriotic_american
2009-07-08 02:28:05 - Martin says the Hawai'i courts are obstructing access to historical archives concerning President Barack Obama. In a sharply worded petition to the Hawai'i Supreme Court, to be docketed July 9th, Martin recites a history of abuse, harassment and procrastination by Hawai'i judges, clerks and the state's Attorney General. "There is no explanation for the behavior of Hawai'i officials," Martin says, "Unless someone has something to hide."
ANDY MARTIN Post Office Box 1851 New York, NY 10150-1851 Toll-free tel. (866) 70-6-2639 Toll-free fax (866) 707-2639
Petitioner Pro Se
IN THE
SUPREME COURT OF HAWAI’I
SUPREME COURT DOCKET NUMBER:
ANDY MARTIN,
Petitioner,
HON. LINDA LINGLE, in her official capacity as Governor; DR. CHIYOME FUKINO, in her official capacity as Director of the Department of Health, HON. BERT AYABE, in his official capacity as Circuit Judge,
Respondents.
APPLICATION FOR WRIT OF CERTIORARI
INTRODUCTION AND PRELIMINARY STATEMENT The question of the authenticity and public availability of the original, typewritten 1961 birth certificate of President Barack Obama (hereinafter “Obama has become a source of increasing embarrassment for the Hawai’i state government and especially for the Hawai'i judicial system. Although Obama purportedly posted a "copy" of his birth certificate on his own web site, and others claim to have posted other versions, those documents were not a copy of the original typewritten document but merely a computer-generated "certificate of live birth." To date Obama has refused to allow public access to the official records of the State of Hawaii. Petitioner is an author and columnist who came to Hawai’i to research Obama’s years in this state. After arriving in Honolulu, Petitioner decided he needed a copy of the original birth certificate, as well as any official files relating to the issuance of said certificate. The Hawai'i Department of Health has repeatedly and egregiously mischaracterized the Hawai’i statute governing access to birth certificates. Petitioner filed a lawsuit in the circuit court, where the treatment he received from the court was appallingly mean-spirited and unprofessional. Petitioner then appealed to the Intermediate Court of Appeals ("ICA Waiting in ambush at every stage of the proceedings was the Hawai'i Attorney General. That office has sought to use and abuse the judicial system to delay and prevent review of the litigation involving access to Obama's birth certificate. It should not literally take a "supreme court case" to obtain access to an archival document of American history such as a president's birth certificate. After full briefing by the petitioner, the ICA dismissed the appeal on the basis that the trial court had failed to enter a final judgment. Thirty years after the U. S. Supreme Court eliminated such jurisdictional gymnastics in federal courts, the Hawai'i court system continues to use dirty tricks and unsavory procedures to delay and deny appellate review. For shame. This petition raises the question of whether a prior decision of this Court should be brought into conformity with the federal standard, and whether the Attorney General, as a constitutional officer of this Court, should be allowed to use dirty tricks and ambush tactics to create confusion and chaos for appellate litigants and for the appellate judiciary as well. This is the second time the underlying "birth certificate" issue has reached this Court. Hopefully, there will not be a need for a third visit.
I. JURISDICTION This court has jurisdiction of this Petition pursuant to HRS § 602-5 and HRAP 40.1.
II. STATEMENT OF THE ISSUE PRESENTED Should this Court reconsider Jenkins v. Cades Schutte, 76 Haw. 115, 869 P.2d 1334 (1994) and adopt the federal "waiver" standard created in Bankers Trust v. Mallis, 435 U.S. 381, 98 S. Ct. 1117 (1978)?
III. PRIOR PROCEEDINGS The Circuit Judge dismissed this lawsuit with prejudice. Petitioner then filed a timely motion for reconsideration. The judge then denied that motion and Petitioner filed a timely notice of appeal. Petitioner filed his administrative paperwork in the ICA and filed his brief on the merits with that Court. On June 9th, the ICA dismissed the appeal on the basis of Jenkins, saying that Petitioner's appeal was premature. Petitioner did not learn of this action until June 25th because the Clerk's office disregarded HRAP 35 (d) and failed to fax a copy of the order to someone thousands of miles away. Therefore, Petitioner was prevented from filing a timely petition for reconsideration through no fault of his own. On the same day that Petitioner learned of the ICA's action (from one of his readers at ContrarianCommentary.com, not the Clerk's office) Petitioner sent a sharply worded letter to Circuit Judge Ayabe. In response, on June 26th Petitioner received a letter from the Attorney General dated June 26th, purporting to prepare a "final judgment." A copy of the letter is attached hereto. On information and belief, as of this date (July 7, 2009) no judgment has yet been entered by Ayabe or the Clerk. Petitioner is both asking the ICA to reinstate the appeal and asking this Court to grant a writ of certiorari.
IV. STATEMENT OF THE CASE It is painfully obvious that circuit judges and clerks are not entering "judgments" in the rote or mechanical manner contemplated by this Court in Jenkins. Six months after entry of a dispositional, appealable order, no judgment exists and, presumably, no right of appeal has yet been triggered. The proposed "judgment" prepared by the Attorney General appears to have been drafted in bad faith. The proposed judgment appears to clearly violate Rule 54 (a), which states "A judgment shall not contain a recital of pleadings"
V. ARGUMENT Six months after a circuit judge entered a final, appealable order, Petitioner is being told he cannot yet appeal. Rule 58 is being used to deny appeal, not to facilitate it. What is strange is that Jenkins suggested "[Rule 58] was not designed as a trap" But that is how Jenkins is being used. In the course of litigation in Hawai'i courts, Petitioner has seen numerous instances where this Court follows federal procedure, see e.g. Harada v. Burns, 50 Haw. 528, 445 P.2d 376 (Haw. 1968), Kawamata Farms v. United, 86 Haw. 214, 948 P.2d. 1055 (1997). There are numerous similar ICA citations. Apparently the only place where Hawai'i law departs from federal procedure is in the case of Rule 58. The Attorney General obviously uses Rule 58 as a "secret" weapon to harass opposing litigants. The petitioner is not part of the court system. The Attorney General, circuit judge and circuit clerk are all part of the judicial machinery. Yet the Petitioner is being harassed and punished because these three officers of the court system have refused or failed to perform their duties. If this is not abuse and harassment, what is? For over three decades federal courts have found no problem with Mallis. Jenkins, on the other hand, has proven a failure, when the judge, the clerk and the AG all fail to comply with Rule 58, and the AG and ICA then pop up, jack-in—the-box style, and demand that the petitioner start all over again. Can this nonsense really be in the interests of justice? Does this harassment and abuse of litigants really enhance the prestige of the Hawai'i courts? The answer is apodictic. Through no fault of his own, Petitioner is being told he is subjected to endless delays in appealing because judicial officers and quasi-judicial officers are refusing and failing to perform their assigned and proper functions. The Civil Rules appear to contemplate that the Clerk enter a judgment, not a party. Trial court procedure appears to reflect that the prevailing party prepare the order. Yet the AG, which prepared every prior order, suspiciously failed to prepare a judgment, subsequently using the "lack of a judgment" as a potential ambush and trap in the ICA. This is disgraceful behavior by a constitutional officer of the court. As the U. S. Supreme Court said long ago said regarding the Attorney General of the United States, "The [Hawai'i Attorney General] is the representative not of an ordinary party to a controversy, but of a sovereignty…he is not at liberty to strike foul ones." Berger v. U.S., 295 U.S. 78, 88, 55 S. Ct. 629 (1935). See also State v. Maluia, 107 Haw. 20, 108 P.3rd 974, 982-983 (Haw. 2005)(Acoba, J, concurring); State v. Wong, 97 Haw. 512, 40 P.3rd 914, 929-930 (Haw. 2002). Rather than being the "servant of the law" contemplated in Berger, the Attorney General has acted as an unscrupulous adversary who sought to use and abuse the judicial system to delay a meritorious appeal. The record below reflects that Petitioner has treated the circuit judge with the utmost respect. That respect and professional courtesy has not been reciprocated. Now the AG has proposed a "judgment" that looks suspiciously prolix.
CONCLUSION Is Hawai'i part of the United States? Or is it some gangster republic that manifests contempt for the United States of America? This Court should not have to become embroiled, over and over again, in supervising the release of a simple and obviously archival document of American history. It is axiomatic that the birth certificate of an American president is a historic document that should be on display in the state archives, not the subject of guttersnipe litigation tactics by the Hawai'i Attorney General. Unless someone has something to hide.
CONCLUSION Most respectfully, but with a growing sense of exasperation and frustration, this Court is asked to (i) reconsider Jenkins and adopt the Mallis rule allowing a waiver of Rule 58, to avoid future legerdemain of the type documented in this record, and (ii) either assume jurisdiction of this appeal or direct the ICA to expeditiously hear Petitioner's arguments.
DATED: July 8 2009 New York, NY
Respectfully submitted,
ANDY MARTIN
NATIONAL LITIGATION CENTER P. O. Box 1851 New York, NY 10150-1851 Toll-free tel. (866) 706-2639 Toll-free fax (866) 707-2639 E-mail: AndyMart20@aol.com (text only)
Additional courtesy copy requested to:
ANDY MARTIN REGIONAL LITIGATION SUPPORT 30 E. Huron Street, Suite 4406 Chicago, IL 60611-4723
SERVICE OF NOTICES IS RESPECTFULLY REQUESTED BY FAX OR E-MAIL
Additional e-mail address available upon request
CERTIFICATE OF SERVICE
I certify I have served the Hawai'i Attorney General by fax to (808) 587-3077 and the Hon. Bert I. Ayabe by fax to (808) 539-4108 on July 8, 2009.
ANDY MARTIN
He isn’t a citizen that is why.
I’ll agree to that!
You wrote- “He isn’t a citizen that is why.”
“..why is Obama spending so much in legal fees to keep his birth certificate hidden”
obama isn’t paying- no one has investigated whose deep pockets are paying the legal fees. The obama’s havent paid for much of anything since he entered politics and was annointed to be the 2d black president.
His birth certificate would be the one reissued by state of Hawaii after he was adopted by Lolo Soetero so he could become an Indonesian citizen and attend school there. Adopted kids get a new birth certificate.
There is no evidence he ever took steps to reclaim his American citizenship or legally change his name to “Barack Obama”. Quite a messy embaraassment.
Maybe he was born in (as he pronounces) Pakkkkeeeestan
In every corner he is being helped by the courts, because they a liberal.
Jack Lord is rolling over in his grave...
This in itself would make him a non-natural born citizen.
You wrote: “His birth certificate would be the one reissued by state of Hawaii after he was adopted by Lolo Soetero so he could become an Indonesian citizen and attend school there. Adopted kids get a new birth certificate.”
You are correct, but “We the People” will be heard.
You wrote: “In every corner he is being helped by the courts, because they a liberal.”
It would make him a kid whose kooky communist America-hating mother renounced his citizenship in a plant to raise him as an Indonesian (which does NOT recognize “dual citzenship”.
As a young man he could have reclaimed his US citizenship, but he had to take specific concrete action to do so. When has obama ever bothered with pesky paperwork?
I contend he got his first US passport (VIP One) as a US Senator, by sending a minion over to State Dept to demand he be issued one in a hurry to make a VIP trip (again, the use of a crisis) without proper documentation. No doubt the racist card worked its charm on some State Dept clerk who deals with the imperious Congress and their strap hangers
Are you aware of Obama’s trip to Pakistan in 1981? Which country’s passport did he travel with?
The media doesn’t care if he’s a citizen or not. All they will ever do is swoon when they mention his name and follow him around to get a glimpse of him walking on water.
Until the media’s hero worship ends, this will never be an issue.
Lots of questions the journalists have studiously ignored. Stanley Dunham’s passport records would also be interesting and answer the question whether she ever traveled to Kenya and when.
No doubt the campaign State Dept passport security hack pulled or altered a lot of records. Too bad the DC investigator on that case was murdered in a random street crime.
I understand that this murder case was never solved? Hummmmmm?
You wrote- “No doubt the campaign State Dept passport security hack pulled or altered a lot of records. Too bad the DC investigator on that case was murdered in a random street crime.”
good post!
Thank you! Note conflicting Obama info on where he was born.
Interesting. Verrrrrrrrrrrry interesting.
You wrote- “Obama’s own flacks deny that obama was born in Kenya but do acknowledge that he had a dual citizenship up until 1982 ...................... Its not unreasonable to think that he got his British/Kenyan (citizenship) because he was born there—and not because of his parentage.”
Apparently Hawaii has a long history of giving out birth certs and COLBs like candy, no questions asked, in order to inflate their census numbers for federal funds... it’s no surprise they’re stonewalling.
Good point! Well put!
You wrote- “Apparently Hawaii has a long history of giving out birth certs and COLBs like candy, no questions asked, in order to inflate their census numbers for federal funds... it’s no surprise they’re stonewalling.”
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.