Posted on 01/08/2010 7:30:02 AM PST by rxsid
In part...
"MOTION TO TAKE JUDICIAL NOTICE OF HAWAIIAN TERRITORIAL STATUTES, THE REVISED LAWS OF HAWAII, CHAPTER 57, “VITAL STATISTICS,” AND THEIR EFFECT
I. THE BACKGROUND OF THE JUDICIAL NOTICE EFFORT TO THIS POINT
The appellant John D. Hemenway previously asked the Court to take judicial notice of certain matters of public and official record, including a statute of the state of Hawaii that was enacted in 1982, § 338-17.8 of the revised laws of Hawaii of that year, and which was entitled” “Certificates for children born out of state.”
...
We thus asked to the Court to take judicial notice of the fact the laws of Hawaii, as late as 1982, and continuing into the present day, allowed then and do allow to this day for a child born out of state to receive something called a “birth certificate,” even though the child was not in fact born in Hawaii but was born outside Hawaii. Thus a Hawaii official might assert that a person had a “birth certificate” that was on file with the state or had been on file with the state but that assertion doesn’t prove that a child was born in Hawaii.
...
The appellees Soetoro a/k/a Obama and Biden did not respond to our motion (It originally was filed by the undersigned on behalf of both himself and appellant Hollister) within the time allowed by the Rules of the Court for responding to a motion. On October 20, 2009, the Court, through the Clerk, issued a Show of Cause to the appellees Soetoro a/k/a /Obama and Biden because of their failure to oppose our first Motion for Judicial Notice with the time allotted by the Rules for a response, saying that the appellees were required to file and show by October 30, 2009
...
The appellees Soetoro a/k/a Obama and Biden did not comply with the October 20, 2009 Order of the Court by showing why they had ignored the Court’s Rules and failed to respond to the initial motion for judicial notice in a timely fashion. They offered no reason for why they had ignored the Rules. Instead they filed a document which badly misrepresented both the law and facts of the historically verifiable meaning of Federal Rule of Evidence 201 and attacked the submissions that we put forward as not being eligible for judicial notice, with the single exception of the statute quoted above. As to that one request, our asking that the Court take judicial notice of the 1982 statute, they did not attack that statute and thereby admitted that it was deserving of judicial notice or at the least waived any right to object to it.
...
In that first motion for judicial notice when we pointed to the above-quoted law of Hawaii of 1982, which is now unopposed and thus acknowledged as appropriate for judicial notice by the appellees, we stated that it was the same as the laws of Hawaii in effect at the time of the birth of the appellee Soetoro/ a/k/a Obama. At that time we were unable to locate, either on the website of the state of Hawaii or in the law libraries of the local law schools a copy of the territorial laws as they were in effect at the time of Soetoro a/ k/a Obama’s birth before the major revision of the state of Hawaii’s laws in 1982. Since that time the undersigned’s support staff has been able to locate a set of those territorial laws of Hawaii as they were published with the authority of the Territory of Hawaii in the years before the birth of the defendant Soetoro a/,k/a Obama and as they continued in effect up through the year that he was born.
II. THE TERRITORIAL LAW 57 AND ITS SIMILARITY TO THE 1982 LAW OF THE STATE OF HAWAII
We attach to this new motion for judicial notice a copy of Chapter 57, “Vital Statistics,” the law concerning these matters as it was in the Territorial laws in question. The statute of the Territory thus attached is from the Revised Laws of the Territory of Hawaii 1955 in Three Volumes as published by the authority of the Territory of Hawaii by the Filmer Brothers Press, 330 Jackson Street, San Francisco, California. These three volumes comprise the statutes of the territory including the acts passed at the regular session of 1955 and the special session of 1956 as consolidated, revised and annotated. As can be seen, because we attach it also and request judicial notice thereof, these three volumes of the statutes of the Territory are certified by the chairman of the compilation commission of the Revised Laws of Hawaii 1955 as appointed by the Governor of the Territory of Hawaii under Act 179 of the Session Laws of Hawaii, 1953.
...
In our earlier motion we were wrong on one point, although the error is in the favor of appellants. The error that we made was due to our not at that time of the filing of the first motion being able to locate a copy of the territorial statutes as in effect before 1982. Upon locating and being able to review the applicable territorial statute we found that it was not exactly the same as the act set out in the major revision and codification of 1982, although similar. What in fact the territorial statute in effect before the 1982 statute sets out is an even greater latitude enabling and entitling persons to register a child for up to a year after its birth and to do so, if not attended by a locally licensed physician or midwife, for the parents or one of them to fill out the birth certificate or for a “local registrar” to fill out a birth certificate “from anyone having knowledge of the birth.” Thus a child born outside of Hawaii and attended by a non-Hawaii licensed health care provider or born unattended could get a Hawaii birth certificate nonetheless. After an initial discussion of that authority we will then request additionally that the Court take judicial notice as a legislative fact of the Act which put into place the 1982 statute which is still in place and which replaced the territorial acts.
...
The specific Act of the state legislature which brought the attached territorial statute up to date and incorporated it into that Code was Act 182 H.B. No. 3016-82. We ask the Court to take judicial notice of that Act as thus passed in 1982 at this time. The actual Act 182 says, inter alia:
Upon application of an adult or the legal parents of a minor child, the director of health shall issue a birth certificate for such adult or minor, provided that the proof has been submitted to the director of health that the legal parents of such individual while living without the Territory or State of Hawaii had declared the Territory or State of Hawaii as their legal residence for at least one year immediately preceding the birth or adoption of such child.In this way, to quote further from the Act, “state policies and procedures” of Hawaii accommodate even “children born out of State.”
We believe that the Court is obligated to take judicial notice of the attached territorial statute and, in doing so take judicial notice that there are ways that a “birth certificate” can have been obtained for a child under that statute that are allowed greater latitude for such a “birth certificate” to have been obtained that would be restricted under the present statute, so that the present statute allows for a child to have been born outside the state and still have been issued a Hawaiian “birth certificate,” but does so without the same breadth of possibilities for that having happened as was possible under the attached territorial statute.
For example, under § 57-9(a) allows for a situation where the official then knows as the “local registrar” can obtain information from “any person having knowledge of the birth” and prepare and file the birth certificate. We ask the Court to take notice of the latitude for inaccurate information that is thus created. Further, § 57-9(b) allows there to be a filing of a certificate of birth on which required information is simply missing and can thus be filed by a “supplementary report” and yet the filing of initially unsupplied information by a “supplementary report is not considered as causing that report with information that was not supplied at the outset to be treated as “delayed” or “altered.” It must be noticed that this creates great latitude for mistakes or even abuse of requirements. Thus, although § 57-18 gives the same time frame—one year—that was incorporated in the 1982 state statute, for a “delayed” or “altered” certificate, the procedures give greater latitude for there to be mistakes and abuse of the procedures and for incomplete information.
This great latitude that allows for mistakes, misinformation, incomplete information and even abuse in turn extends into the requirements for what is put on the birth certificates, or required to be put on them, how they are to be kept and disclosed and all the other aspects of the system."
Complete motion, with HI Territorial Law 57 attachment, here:
http://www.scribd.com/doc/24948817/Joint-Motion-with-HI-Territorial-Law-57
You make an excellent point and you are very likely correct on the matter concerning the two signatures. However, for the sake of discussion, in case the inevitable questions reqarding them arise, allow me to play 'Devil's Advocate' on this.
Could it not at least be conceivable for Madelyn to have gone to the local registrar's office and provided the required information to be typed onto the form. She could then have stated that her co-signer, Martin Blaine E-?-n, was busy with clients, customers, meetings, sickness, or whatever, and could not come in personally. She, however, would be happy to take the form to him for his signature and return the same day to the registrar's office to complete the process.
Regarding the above 'forgery' scenario, IMO -
Loosey goosey and unlikely? Yes!
Impossible? No! (But this wouldn't invalidate the authenticity of the document)
THERE IS NO CERTIFICATION ON THE FORM THAT EITHER OF THE SIGNATURES IN BOXES 18a or 19a WAS WITNESSED BY ANYONE.
I wonder if an image of Madelyn's signature is independently available anywhere on the web? I looked a bit for it but couldn't find anything. It would help authenticate the document if her signature could be shown to match that on the Blaine COLB application.
In my reconstruction of the clerical procedure in the local registrar's office and given to explicit attempt to prevent fraud in the language of HI Law 57, the clerk's signature is, in my view, almost certainly intended to be a witness signature of the employee of the state of HI to the signatures and representations of the witnesses.
As you suggest, obtaining comparison signatures for Madelyn, especially to see whether she dropped the “e” in her name on occasion, would be good!
The first of these assertions is mentioned in several posts. It is the assertion that “`Lack of claim’ is an element of standing applied to the plaintiff, not an element of jurisdiction applied to the court.” See post 95 above. A little bit of inquiry shows that this is not the law. “Lack of claim” under Rule 12 (b)(6) is separate from standing and standing is not an element of lack of claim since the two things, under the law, are distinct.
This can easily seen by examining the opinion of the Supreme Court in the well-known case of Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37-38 (1976), at a point where it quotes on point regarding standing from the even better known case of Flast v. Cohen, 392 U.S. 83 (1968). Here is what it said about standing to distinguish it clearly from other doctrines such as failure to state a claim:
No principle is more fundamental to the judiciary’s proper role in our system of government that the constitutional limitation of federal-court jurisdiction to actual cases or controversies. See Flast v. Cohen, 392 U.s. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.947, 958 (1968). The concept of standing is part of this limitation. Unlike other associated doctrines, for example, that which restrains federal courts from deciding political questions, standing “focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Id., at 99, 88 S.Ct. at 1952, 20 L.Ed.2d at 961.
In the Hollister case Judge Robertson, in his opinion of March 5, 2009, stated that he had jurisdiction because of the interpleader statute and then dismissed the case, he specifically stated, for failure to state a claim under Rule 12(b)(6). Thus, he focused on the issues that Colonel Hollister was seeking to focus the court’s attention on and not on Colonel Hollister as a party. In order to dismiss for that reason he had to consider with the claim of Colonel Hollister was meritorious. As his opinion reveals his principal focus was on what he found to be a lack of tangible property as an interpleader “stake.” This preoccupation was with the merits of the interpleader claim of Colonel Hollister and not with any issue involving Colonel Hollister as a claimant. It was on the claim and not the party.
That Judge Robertson was thus assuming standing by stating that he, as the judge, had jurisdiction, was recognized by Robert F. Bauer, who was at that point counsel for the defendants Soetoro/Obama and Biden on the appeal when he filed his original opposition brief for the defendants as appellees prior to the briefing being rescheduled. This is document 1204814 on the appellate docket in the case, filed September 9, 2009. On page 21 Bauer begins his argument that Colonel Hollister had no standing by claiming that Judge Robertson had assumed he had jurisdiction without analysis and thus, by necessary implication, had failed to analyze standing For Bauer then spends a good deal of argument claiming lack of Article III standing. Of course, any judge at any level may consider standing at any point. But that is not to say that standing is the same as the claim itself or is an element of it.
This distinction between a Rule 12(b)(6) failure to state a claim and standing or any other issue dealing with the claimant rather than the claims has been made in every court that has looked at the issue. There is no law supporting the idea that standing is an element of a claim. It is always addressed as an issue of the right of the claimant to pursue the claim because of the claimant’s status, not the content of his claim. In Peckmann v. Thompson, 966 F.2d 295, 297 (7th Cir.1995) for example, the 7th Circuit found that even if a Rule 12(b)(1) motion were an “indirect” attack on the “merits” of the claim it could be treated as a Rule 12(b)(6) motion for dismissal because of failure to state a claim. This emphasized that Rule 12(b)(6) failure to state a claim motions focus on the merits.
Similarly, in Reeves v. Guifridda, 756 F.2d 1141, 1143 (5th Cir.1985) the 5th Circuit found that a motion, because it went to the merits, had to be treated as a Rule 12(b)(6) motion about whether or not there was a failure to state a claim and considered the merits, finding that a claim had been stated. In an earlier case, Whiting v. Seyfrit, 203 F.2d 773, 774 (7th Cir.1953) the 7th Circuit treated a motion to dismiss a pro se complaint brought charging a conspiracy in violation of constitutional rights where the defendants’ dismissal motion was on the grounds that the complaint “failed to state a cause of action under the Constitution or laws of the United States” as a Rule 12(b)(6) motion to dismiss for failure to state a claim. The Supreme Court again emphasized the distinction between jurisdictional arguments such as lack of standing and claims a few years ago when it held that the statute of limitations defense is not jurisdictional but goes to the merits in the case of Day v. McDonough, 547 U.S. 198, 205 (2006).
For those who wish to see the man in the White House get away with trashing the Constitution and our system of law based on it, of course, the law does not matter, but for those who do claim to be concerned it is imperative that such errors of law not be spread abroad. It is only if judges believe that they are being watched to see if they choose to actually apply the law that we will see the Rule of Law have a chance of prevailing.
Bump for later review....
Thank you for the detailed post. Not being a lawyer myself, it helps to hear these details supported by case law. As we all “hash” this eligibility issue out...it is important for all of us to have accurate information if we are to succeed! Lets hope the court has the fortitude to do what’s right.
But the plaintiff invoking the doctrine does not him or her self ask that the unconstitutional officer be removed. What the plaintiff asks is that the action by that officer which will affect him or her be declared as not lawful.
In the Hollister case the retroactity in question, as discussed by SCOTUS in the case cited by Hollister, the Ryder case, was whether Coastguardsman Ryder had raised the issue before the decision of the panel that affected him by a panel with an unconstitutional member. Thus SCOTUS explained that in order for government to function it was necessary that the party affected raise the issue before the decision in question was made because if every person, after had already been made, could challlenge the constitutional legitimacy of an officer involved in the decsion it would create chaos.
Teh question remains one of whether there is some reason that the doctrine as espoused would not apply to a de facto officer in the White House who is not de jure as oppposed to a lesser officer in that situation. Obviously, if Colonel HOllister succeeds, it will create a serious problem in that other members of the Reserves will wonder whether they should accept a call up order from the One. But Colonel Hollister has not asked for the removal of Soetoro a/k/a Obama only that if the defendant is found to be de facto and not then he must look for a legitimate call up order to Biden as the other interpleadler defendant.
At this point can congress be forced to act by law?
"That Judge Robertson was thus assuming standing by stating that he, as the judge, had jurisdiction, was recognized by Robert F. Bauer, who was at that point counsel for the defendants Soetoro/Obama and Biden on the appeal when he filed his original opposition brief for the defendants as appellees prior to the briefing being rescheduled."
I totally disagree with your conclusion above that Roberson "was thus assuming standing". You are putting words in his mouth, in my view. Your case quote from Flast does not support your contention that Robertson found that Hollister had standing.
Your quote from Flast is a broader definition of jurisdiction over a particular case, which includes the requirements of standing for the plaintiff, as compared to jurisdiction of a court in general over types of cases without regard to particular plaintiffs, such as whether a court can hear quo warranto.
You are in fact making my point that Roberson found that Hollister lacked standing becasue Hollister failed to claim an actual controversy that the court could remedy.
To have an actual controversy that would justify standing, Hollister had to claim an "injury in fact" (an element of standing). To try to satisfy that requirement Hollister put before the judge his interpleader "stake" claiming potential damage to this "stake" if Obama is found to be ineligible.
Robertson denied the validity of Hollister's claim to an injury in fact and thus denied Hollister standing. Without an injury in fact, the court is unable to fashion a remedy for a nonexistent injury. So while Robertson got as far as finding that his court had a general standing to hear the matter, Robertson found that plaintif Hollister's specific claims for injury before the court failed to justify granting Hollister standing.
There is not a shred of legal authority that supports your wrong contention that standing is an element of a claim. You can ignore the clarity of the Supreme Court all you want but it remains an ussupported personsal opinion by you.
I never said that “standing is an element of a claim.”
"Failure to state a claim" as found by Robertson, equals "failure to gain standing".
A plaintiff must have a justiciable claim to have standing, so it is having a justiciable claim that is an element of standing.
A plaintiff's case will be dismissed, as Hollister's was, for failure to state a claim that the court can adjudicate.
You are making the erroneous claim that Robertson granted Hollister standing merely by affirming that his court had jurisdiction. This is false. A court can't reach a determination of a particular plaintiff's standing, without first reaching a determination that the court has general jurisdiction over the type of case or controversy.
That is all that Robertson did. He found general jurisdiction but not specific jurisdiction for Hollister's claims because Hollister failed to state a justiciable claim. If Hollister had made a justiciable claim of an injury in fact that the court could rule to be legitimate, the case would have gone to trial. It did not.
(The real lawyers are doubtless rolling on the floor laughing by now! All corrections from lawyers are welcome.) BTW, this same issue was before Judge Carter. Keyes claimed an injury in fact from being on the ballot with an ineligible candidate, and there was extensive discussion at the Oct. 5 hearing on the issue over whether Keyes was entitled to standing on that issue. Carter said it was not clear where to draw the line on injury in fact when Keyes prospects of winning were so tiny. In the end Judge Carter denied standing and dismissed the case due to failure to state a claim.
Lack of a claim is lack of a claim. By the cases I pointed out it is not an element of standing. As the Supreme Court has clearly said lack of a claim is not standing or part of standing. If there is laughter it wouild be at yourself. Have you ever actually litigated a constitutional case? As, you put it, a “real lawyer,” I have won cert in one, one that involved an election in fact. But obviously you know better than the Supreme Court because you know that lack of claim focuses on the litigant rather than the merits of what is claimed, unlike every reported case on the subject. Judges look at whether they have jurisdiction, which necessarily involves considering standing, then they look to see if there is a claim. They do not analyze the claim and then extrapolate from that to standing. For one thing, jurisdiction and standing analyses are under 12(b)(1) not 12(b)(6). The former goes outside the pleading the latter analysis does not except for taking judicial notice. If you were an experienced federral litigator you would have to know that.
Lack of a claim is lack of a claim. By the cases I pointed out it is not an element of standing. As the Supreme Court has clearly said lack of a claim is not standing or part of standing. If there is laughter it wouild be at yourself. Have you ever actually litigated a constitutional case? As, you put it, a “real lawyer,” I have won cert in one, one that involved an election in fact. But obviously you know better than the Supreme Court because you know that lack of claim focuses on the litigant rather than the merits of what is claimed, unlike every reported case on the subject. Judges look at whether they have jurisdiction, which necessarily involves considering standing, then they look to see if there is a claim. They do not analyze the claim and then extrapolate from that to standing. For one thing, jurisdiction and standing analyses are under 12(b)(1) not 12(b)(6). The former goes outside the pleading the latter analysis does not except for taking judicial notice. If you were an experienced federral litigator you would have to know that.
That’s the big question raised by the case.
You misstate what I said again. I never said "lack of claim focuses on the litigant rather than the merits of what is claimed."
I seem to recall you saying you were not a lawyer.
Your memory is no better than your knowledge of the law. Althouogh not practicing at this time I was a lawyer for a very long time.
Thanks for your pings and information!
If I was a lawyer, I would not push to have the courts remove him from office, I would have the courts open up the case for discovery to see whether he is eligible or not, and have Congress decided on what to do.....
However, they could make a decision regarding original intent of the framers and weather or not he meet's the requirement of NBC.
If he didn't, then it would be up to "some other group with jurisdiction to remove a (criminal) usurper. FBI? Fed Marshals? That, of course, assumes he didn't "step down" like Nixon.
For the record, I have linked below a copy of the September 19, 1940 ‘Application for Social Security Account Number’ for Madelyn Payne Dunham, Barack Obama’s maternal grandmother. Importantly, the SS form contains her signature, which can thus be compared to what is intended to be her signature in the 18a box on the Blaine BC Application. One must remember that approximately 19 years has elapsed between the first and second signatures so evolutionary changes in style are to be expected.
http://www.orlytaitzesq.com/wp-content/uploads/2010/03/MadelynDunham-SSAppl.pdf
The referenced SS Application was obtained from the Orly Taitz, “Defend Our Freedoms Foundation” website. Orly entered a 3/1/10 post titled, “I Need Forensic Document Experts, Signature Experts, Investigators to Work on this and get Any and All Info” The post contains a copy of a letter to Orly from Paula Hoehn with the SS Application attached as a link. The following is an excerpt from the cover letter from Ms. Hoehn to Dr. Taitz.
“Attached are Soc Sec Applications for Obama’s grandparents Stanley and Madelyn Dunham, and a woman named Shirley Jean (Applebee) Dunham born in Washington. Also, attached is the accompanying letter to me from Dawn Wiggins, Freedom of Info Officer, Soc Sec”
I am not a handwriting analysis expert. My conclusion, after examining the two signatures, is they have numerous differences, yet some similarities as well, so I can draw no clear impression either way. Thus, I could draw no definite conclusion, based on the signatures, concerning the authenticity of the Blaine BC document.
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.