Skip to comments.HI Territorial Law 57 (foreign born & HI B.C.'s) - Joint Motion Filled in HOLLISTER v SOETORO
Posted on 01/08/2010 7:30:02 AM PST by rxsid
"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 doesnt 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 Courts 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 Obamas birth before the major revision of the state of Hawaiis laws in 1982. Since that time the undersigneds 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 frameone yearthat 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:
Regarding Donofrio...I read a response from him early on that on the Chrysler case...he was only proceeding with the clients best interest’s in mind and that they (the clients) were not primarily concerned with the eligibility issue. As I read it, a QW would only be filled IF the BK case did not result in the dealers having their dealerships reinstated.
I have been worried about this. If the government, acting to protect Obama, offered a sufficient cash settlement and the dealers took it, quo warranto would almost certainly be dropped by the dealers as a condition of the settlement.
BTW, The dealers don’t want to reopen their dealerships, they want settlement money, per the lead plaintiff. The Chrysler dealerships were shut down immediately, unlike the GM dealerships that are on a phased schedule that can be canceled by arbitration.
It is possible that the quo warranto has been put on hold and kept as a threat to motivate a cash settlement, but Anderer, the Chrysler dealer seen on Cavuto really seemed to want to punish Obama and didn’t seem likely to settle for a few pennies on the dollar for having his franchise given to a competitor who was a Democrat contributor.
It is not at all clear how meaningful funding for a settlement could be obtained from the legal entity that is still in bankruptcy. The bankruptcy judge would have to admit a huge mistake (a fraud on the court said DOnofrio) and the redistribute the assets of the bankrupt entity taking away assets allocated to other creditors and giving them to the Chrysler dealers. I just don’t see the wherewithal for a settlement there for the Chrysler dealers.
At a minimum, any settlement would take time lots of court proceedings. DOnofrio was fully aware of this when he said he would file the quo warranto right around New Years Day. If you look at the 12-29-09 interview with Anderer on Cavuto that game is very much on and I thought I saw a quo warranton gleam in Anderers eye.
There could be many reasons why DOnofrio might want to delay quo warranto for a few days or weeks to tweak it to make it better. Also for maximum publicity impact, the world isn’t really back from the holidays until this Monday. Quo warranto isn’t much good as a threat to pressure for a cash settlement unless it can actually get filed in the DC Circuit with arguments that some portion of the Obama DOJ team regards as credible. So I fully expect that it is coming soon.
Real? Fake? Real fake? Who has it? How? WTHk over.
If the AG turns the case down, the way is open for plaintiffs to act on their own. That’s by statute. The AG sort of has a right of first refusal to act as counsel, but cannot shut the case down.
To repeat the question he raises at the end of that argument. Why would a de facto officer who is not de jure be immune from the operation of that doctrine just because he is de facto and not de jure in the Oval Office rather than in a lesser office? What wouild exempt the defendant Soetoro a/k/a Obama from the law in that regard?
See the FR thread at this link for a discussion of that brief which includes a discussion on the de facto officer doctrine as set out by the Supreme Court.
Will the DC Circuit be influenced by politics regarding whether to grant leave of the court to D’Onofrio?
Of course, but I suspect the politics will skew towards the court granting leave. The Chrysler dealers are exactly the kind of plaintiff covered by quo warranto. They can show injury in fact directly caused by agents of Obama acting as POTUS. If quo warranto does indeed apply to POTUS (yet to be litigated, but will be the first challenge) the court would seem to me to be hard pressed not to allow the Chrysler dealers to demand proof of Obama’s eligibility ot be POTUS.
Why? Proving Obama’s eligibility should be a snap, according to Obama partisans on and off the courts! What possible legal reason could the court imagine that would make it politically acceptable to justify blockading a jury trial at which Obama should be expected to merely present his “self-authenticating” HI short-form COLB and everyone goes home?
Denying leave of the court to file quo warranto for any reason other than a ruling that quo warranto doesn't apply to POTUS would scream “the judges are protecting Obama from something”.
If the court grants leave to file, then the trier of fact will be a jury (from memory), not any Democrat appointed judges of the DC Circuit. Burden of proof will be on Obama and under FRE I believe the best evidence rules will allow a demand for discovery of the entire HI vital record file and subpoenas of witnesses. The short-form COLB is only self-authenticating absent evidence that challenges it such as the HI Law 57 and the Blaine BC if its provenance can be established or if it can be discovered in the HI vital records files.
While Hemenway is totally justified in being steamed by Robertson's taking judicial notice of blogging and twittering in affirming a presumption of Obama's eligibility, Robertson's dismissal effectively defeated discovery of Obama's eligibility and trial on the merits until after the inauguration including any determination that Obama is not de jure POTUS.
Hollister's claims that he is entitled via interpleader to challenge the authority of the CIC is "innovative" and I haven't seen any persons claiming to be lawyers who think it had a chance of succeeding even it it reached trial.
Thus until a quo warranto hearing decides otherwise, Obama is both de facto and de jure POTUS. Hemenway can't expect the court to act as though Obama was only de facto POTUS based on allegations never admitted into evidence at a trial.
yes, discussed before...lots of comments
As to the anonymous lawyers to whom you have spoken: Is there a basis for their opinions or are they just guesses based on such factors as "unthinkablity" rather than legal precedent?
In other words, you don’t have an answer to thw question, so you have avoided it. You have stated that the defendant is President de jure but have failed to address the issue of how that can be so if he is ineligible for the office for lack of meeting the article II, Section 1, Clause 5 requirement. If one is filling the office in violation of the Constitution he cannot then, by definition, be doing so de jure or the term would be meaningless unless the Constitution is not legally binding.
As to the anonymous lawyers to whom you have spoken: Is there a basis for their opinions or are they just guesses based on such factors as “unthinkablity” rather than legal precedent?
But if a man is constitutionally ineligible to be the President, how is he then a “sitting President” who can only be removed in the manner that a man occupying the office who is eligible must be removed. The question remains one of why the de facto doctrine would not apply to a man occupying the office of president just as it would to a lesser official appointed or elected in violation of the Constitution? Would it not be a question of applying the Constitution and declaring what the law is to expose the lack of de jure authority rather than removing someone who does have such de jure authority? Your assertion, I believe, assumes the de jure status that is at issue.
But if a man is constitutionally ineligible to be the President, how is he then a sitting President who can only be removed in the manner that a man occupying the office who is eligible must be removed. The question remains one of why the de facto doctrine would not apply to a man occupying the office of president just as it would to a lesser official appointed or elected in violation of the Constitution? Would it not be a question of applying the Constitution and declaring what the law is to expose the lack of de jure authority rather than removing someone who does have such de jure authority? Your assertion, I believe, assumes the de jure status that is at issue.
Impeachment and trial in the Senate is the remedy. Once a candidate’s electoral votes are certified and he or she is sworn in, that’s that. It was the job of Congress to stop an alleged ineligible candidate’s Electoral votes from being certified. Once they are certified, he’s eligible. And once he’s sworn in, he’s president.
I’m sure that you’ve noticed the seven lawsuits (Berg v Obama, Craig v US, Donofrio v Wells, Herbert v Obama, Lightfoot v Bowen, Schneller v Cortex and Wrotnowski v. Bysiewicz) attempting to challenge Obama’s eligibility that have reached cert conferences at the Supreme Court seeking Writs of Certiorari. Every one of them has been rejected by the Supremes without comment. That’s because of separation of powers. Only Congress has the power to remove a sworn in president from office. The Constitution is mute on ineligible candidates assuming office.
Finally, the state of Hawaii has vouched for the authenticity of Obama’s birth records. Unless and until some new information comes to light, Barack Hussein Obama II is over 35 years of age and was born in Honolulu on August 4, 1961 at 7:24 p.m.
Funny, because it read it and instinctively knew what the letters meant!
Yeah, I'll pay attention. Things seem to be happening faster and faster now and Obama’s getting piled on bigtime. Something’s gotta give...
“Finally, the state of Hawaii has vouched for the authenticity of Obamas birth records. Unless and until some new information comes to light, Barack Hussein Obama II is over 35 years of age and was born in Honolulu on August 4, 1961 at 7:24 p.m.”
Whether or not the Constitution is “mute on ineligible candidates assuming office” is in dispute and specifically has yet to be tested in the form of a writ of quo warranto hearing in the DC Circuit that would place the burden of proof on Obama to both prove and defend his eligibility for the first time.
Leo D’Onofrio’s contention, subsequently validated by one federal judge, Judge Carter, is that quo warranto applies to the POTUS. D’Onofrio’s analysis is that by passing the quo warranto statute, Congress has delegated to one specific court, the DC Circuit, its exclusive power to find the POTUS to be ineligible. The DC Circuit in a quo warranto proceeding is acting as an agent of the legislative branch, not within the exclusive powers of the judicial branch, thus no violation of separation of powers in this interpretation.
The DOJ, in the case before Judge Carter, argued that quo warranto does not apply to the POTUS. In effect, DOJ argued that once a president is inaugurated, congress loses its power to declare him to be ineligible. Judge Carter said that was troubling and in dicta said that the DC Circuit was the correct venue to challenge the eligibility of the POTUS.
We may all be about to find out who is right!
If I'm not mistaken, only Orly has sought to have a Judge "remove" Barry from office. Otherwise, it appears that the others have sought to have the courts make a Constitutional determination of weather or not Barry was/is eligible, and if not...find him ineligible. Actual removal would be by some other means as the Constitution only states how the removal of a POTUS is to be handled (not how to remove a usurper).
Unprecedented territory indeed.
There is no de facto officer issue until and unless evidence is presented under the FRE during either a trial on the merits or a quo warranto hearing. Hemenway and Hollister only have allegations and opinions that Obama is ineligible that have not yet been substantiated by any court.
You continue to insist that Hollister was granted “standing” which I have repeatedly refuted because Robertson's court is not able to remedy the Hollister’s claim that Obama is ineligible as CIC, but bottom line there has been no evidentiary hearing on any of the eligibility evidence that would refute Obama’s current status as both de facto and de jure POTUS.
The good news is the placement in the court record of HI Law 57, which D’Onofrio can make use of in his quo warranto filing. Unlike Hollister, the Chrysler dealers have a real chance of getting actual legal standing sufficient to justify a quo warranty hearing on the merits with discovery and submission of evidence that could prove Obama to be ineligible.
As to the specific page 17-18 claims by Hemenway in his filing, his interpretation of the de facto officer doctrine seems to be upside-down and controversial by claiming that Obama’s actions are retroactively invalid if he is illegitimate. But the court has no basis for presuming that Obama is illegitimate without a hearing on the merits which this court could only hear before inauguration without violating separation of powers.
I predict Hemenway gets zero votes from three judge appeals panel and zero votes from the en banque appleals panel as well, if he persists. If the court can't fashion a remedy for plaintiff Hollister's claims, Hollister has no standing due to failure to state a justiciable claim and his claims will be dismissed.
In no court have the substantive issues been tried. This is not to say that progress has not been made. The issue will be before the Federal District Court in Washington, D.C., where it belongs.
Ineligible or not, the guy is a sitting POTUS, and can only be removed by impeachment and conviction. He may be de facto, but he can only be removed, IMHO, by a de jure process. TO do otherwise would only do more damage to the Constitution than this prepostor has already done, and put us squarely in the camp of the "Banana Republics."