Yes they are nervous over at the Fogbow. One poster, Loren (who is a attorney) wrote this in a response to a poster named Curious Blue:
Curious Blue wrote:
[4. Only Presidential Electors and Congress can determine eligibility and they have already done so as to Obama in 2008, so documents & testimony are irrelevant (and the ALJ has no jurisdiction or power to decide eligibility).
I still think that it is likely that Jablonski will show up to court and argue point #4, along with asking the court to take judicial notice of the docs related to the birth certificate posted on the Whitehouse.gov web site. He may also have a COLB in his brief case just to be safe.... but he’s better off if he can get the legal ruling from the get go.]
Lorens response:
I still think that would be a terrible strategy, not because I think it’s wrong, but because the judge is clearly not inclined to agree with it. He denied the Motion to Dismiss without even waiting for the plaintiffs to respond, and it seems foolhardy to hope that the judge would suddenly change his mind AT the hearing.
And I haven’t said it before, but I think it’s also risky to put too much stock in judicial notice. Georgia has a judicial notice statute: OCGA 21-1-4. It covers things like state borders, laws and statutes, and “all similar matters of public knowledge.”
Things that have been specifically held to be NOT covered under judicial notice: street locations, county of an incorporated city, the meaning of a yellow curb under traffic law, criminal convictions, etc. Under the list of things that HAVE been allowed judicial notice, the closest I see are things that would be categorized under common knowledge: customary department store hours, normal periods of gestation, physical laws, the definition of moonshine.
In fact, there appears to be a test: “whether the fact is one of common, everyday knowledge that all persons of average intelligence are presumed to know, and whether it is certain and indisputable.” Based on this, I think it’d be awfully iffy to get judicial notice on the birthplace of the defendant, and I’m increasingly doubtful that there could be judicial notice of a DOCUMENT, particularly a document on the internet.
Reading this exchange, it is hard to avoid the conclusion that Obama supporters KNOW that something is irregular around the circumstances of Obama’s birth certificate. This is funny/ strange, because judging from all the jokes they crack about the “birthers,” one would have thought that they think the birthers’ claims are total bogus and paranoia. And now it appears that they are worried. Hmm... I wonder why?
Obama/Jablonski appears to argue Internet documentation is sufficient to suffice for a prerequisite for becoming president. This, if accepted by the judge, would seem to set a damaging precedent and seem to become a very low hurdle for proving facts in evidentiary phases of procedures in Georgia, something the judge presumably might desire to take into consideration when he makes a ruling. Judge Clay Land's decision in 2009 muddies the waters a bit, but that was in federal jurisdiction. Skimming the response, I see that Rhodes v Macdonald was referred to at least twice, but once was in the introduction and the other in the main body of the argument was in regards to sanctions against Orly, not on the key issue of whether a document posted on the Internet can be used as proof in court. Jablonski seems to be aware of perhaps thin legal ice in Land's argument on evidence enough to avoid direct reference to it but still demands the same result.
If Obama's arguments were adopted by the judge (not saying it is likely but just hypothetically), then the doors would seemingly be open not just to Obama but to any potentially unqualified candidate to manufacture a photoshopped birth certificate, post it on the Internet, and claim it in court as evidence that he or she is qualified to run for president (or whatever). Obama seems intent on playing legal chicken here and he does not seem to care much what the unintended legal consequences may be, unless he is an anarchist of sorts and the prospective damages to legal precedent and procedure is actually intentional.