Posted on 08/02/2009 1:35:53 AM PDT by rxsid
Edited on 08/06/2009 12:10:02 AM PDT by John Robinson. [history]
Attorney Taitz filed a NOTICE OF MOTION AND MOTION to Expedite authentication, MOTION for Issuance of Letters Rogatory for authenticity of Kenyan birth certificate filed by Plaintiff Alan Keyes PhD.
http://www.orlytaitzesq.com/blog1/ (site has been the target of hackers, proceed with caution — John)
Correct.
See Wiki on federal discovery Rule 12(b)6):
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (No. 05-1126) (2007) (citations, internal quotation marks and footnote omitted)."
http://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure
I think Orly may want to argue to the magistrate that she needs discovery of at least the Kenyan BCs (including deposition of Lucas Smith and the person in possession of the 1964 BC) to defend against the possibility of dismissal due to the speculative authenticity of those documents. During the Oct 5 hearing, Obama’s team can argue that Obama’s HI certified short form is prima facie evidence of his HI birth under federal rules and is entitled to a hearsay exception making production of the original vital records moot and this should render any claim of a Kenyan BC speculative at best.
Allegations of defects in Obama’s HI vital records are most certainly speculative absent probable cause to question the certified short form as could be established by discovery authentication of at least one of the Kenyan BCs. So I would think it could be argued to the magistrate next week that at the very least, discovery authentication of the Kenyan BCs is required to defend against the Motion to Dismiss on Oct 5.
Seizethecarp, I like the way you think. But I believe iontheball above has it correct in that the only evidence allowed would have to relate to the jurisdictional arguments of the motion to dismiss, not the evidence relating to Obama as a NBC. Clearly Obama’s attorneys do not want the things he’s been hiding to be revealed.
However, Orly still has the Lavender BC on the table, so to speak (and presumably the Smith BC). Magistrate Judge Nakazato will rule on that, and Orly has grossly insulted him. Still, Carter will probably have a say behind closed doors. So, for those, it could go either way. This is a rather unique situation, and in my experience courts do what they want and justify it after the fact.
Thank you for the reply and the compliment!
I try not to be too cynical about judges, despite ample personal experience to the contrary. Judge Carter has shown that he expects to hear the case on the merits and I would then expect Nakazone to facilitate that.
Orly’s Georgia case postponed until Monday. Appears Fort Riley command refused to allow Capt. Rhodes to travel to Georgia Court today. Here is a report:
http://www.ledger-enquirer.com/news/breaking_news/story/836284.html
When the Obama team argues that the short form is enough she will undoubtly bring up that the short form that he presented was available to those not born in HI. At the very least he will require a certified orignal of the short form with the Seal etc.
My non-lawyer reading of the FRE is that the HI short form, if the Obama team shows the judge a copy with the raised seal and signature, is “self-authenticating” meaning to me that Fukino doesn't have to show up in court and testify to its authenticity. I expect that only if Orly first authenticates a Kenya BC in discovery will judge Carter then order release of the HI “vital records”, perhaps only in camera (in judge's chamber).
From Rule 902 Self-authentication:
“Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic public documents under seal.—A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.”
http://federalevidence.com/rules-of-evidence#Rule902
Orly’s Lavender BC purports to be an original that can be forensically authenticated as having been created in 1964 without relying to Kenyan authentication.
Unfortunately, Smith’s BC is a certified photocopy executed in 2009 with a seal and a signature stamp of the current hospital administrator Maganga, which is not as credible as having an actual signature would have been. Trying to obtain “official” Kenyan validation with testimony from Maganga or other Kenyan officials sufficient for the document to be admitted into federal court as evidence looks problematic to my non-lawyer eye reading FRE 902:
Rule 902. Self-authentication
“(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.”
http://federalevidence.com/rules-of-evidence#Rule902
The faction of Obama’s cousin, Odinga, lost the last election and an important sounding position of “Prime Minister” was created for Odinga as a consolation prize after his followers rioted. The president, KIBAKI, has the real executive power in Kenya, but Odinga’s is the largest party faction in the parliament. It is hard to discern whether the ruling party would be more inclined to hide Obama’s BC, possibly for blackmail or to preserve the national pride in Obama if Odinga’s opposition still has that pride after the riots, or whether the ruling party would see any benefit in helping bring Obama down. Odinga’s followers could hold the threat of riots against the Kenyan gov’t.
From CIA Worldbook:
chief of state: President Mwai KIBAKI (since 30 December 2002); Vice President Stephene Kalonzo MUSYOKA (since 10 January 2008);
head of government: President Mwai KIBAKI (since 30 December 2002); Vice President Stephene Kalonzo MUSYOKA (since 10 January 2008); note - the roles of the president and prime minister are not well defined at this juncture; constitutionally, the president remains chief of state and head of government, but the prime minister is charged with coordinating government business
cabinet: Cabinet appointed by the president and headed by the prime minister, who is the leader of the largest party in parliament
election results: President Mwai KIBAKI reelected; percent of vote - Mwai KIBAKI 46%, Raila ODINGA 44%, Kalonzo MUSYOKA 9%
https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html
Because of controvesy over the validity of the COLB the Judge will order one sent directly from HI and not one from Obama.
Otherwise whats the point of going forward?
And?
What I mean is if the Judge wants proof of eligibility he won’t use a form that does not prove it.
Its apparent from reading the statues in effect at the time that anyone could get what Obama has shown.
In the context of the complaint, the burden of proof is on Obama to prove his eligibility, not for Taitz to prove he is not eligible.
The COLB he has does not prove he is eligible.
The Kenyan birth certificate is not even mentioned in the motion to dismiss. The motion contains the usual reasons: lack of standing, lack of jurisdiction by the court, non-justicable political question, and lack of jurisdiction over the plaintiff's quo warrento claims. The chance that the judge would allow Taitz or Kreep to subpoena Obama's birth certificate to fight any of those is nill.
No one here has the first clue how the courts work.
You don’t argue facts in these pleadings. You argue law. (Though Orly does not seem to know this).
Evidence is not submitted in pleadings. Every birth certificate in the world is irrelevant at this moment.
The motion to dismiss is based mainly on two concepts:
1. Standing.
2. Political Question
Orly can have a stack of duely authenticated birth certificates signed by the President of Kenya and St. Peter himself. They don’t matter at this point in time.
The complaint does not determine the burden of proof; the law does.
The burden is on the plaintiff, as always.
Discovery establishing the authenticity of Kenya BCs or revealing potential defects in Obama’s HI BC would enable Keyes to defend against the MTD by establishing a non-speculative basis for Keyes’ injury-in-fact, thus standing, thus jurisdiction (if other elements are shown). Wouldn't this justify a very narrow order for discovery on at least the the two Kenya BCs?
From Motion to Dismiss table of contents:
This Court Lacks Subject Matter Jurisdiction Of
This Action . . . . . . . . . . . . . . . . . . . . . 4
A. Plaintiffs Lack Standing Herein . . . . . . . . 4
1. No Plaintiff Can Show The Required
Concrete, Traceable Injury-in-Fact
To Provide Standing Herein . . . . . . . . 5
No
This is why Orly believes that she has permission to begin discovery. http://www.scribd.com/doc/19548434/KEYES-v-OBAMA-57-ORDER-SETTING-SCHEDULING-CONFERENCE-FOR-1052009-at-830-AM
The next time you get stopped by a cop tell him that he has to prove that you don’t have insurance. See what he says.
Yes, the Motion to Dismiss is an attempt to derail the following passage in the order Orly is attempting to go forward with:
“Unless there is a likelihood that upon motion by a party the Court would order that any or all discovery is premature, the Court encourages the parties to begin discovery before the Scheduling Conference. The parties shall comply fully with the letter and spirit of Rule 26(a) and thereby obtain and produce most of what would be produced in the early stages of discovery.”
It looks like this order is a boilerplate order for this court that authorizes Orly to “begin” full-bore discovery now. Judge Carter said in open court that there is NOT a likelihood for dismissal which I interprete as also meaning there is NOT “a likelihood that upon motion by a party the Court would order that any and all discovery is premature”.
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