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."
Deal has written to Obama last month requesting that he prove his eligibility and InspectorSmith says Deal already has a copy of Lucas Smith's Mombassa BC.
Per InspectorSmith 01-07-10
"I want to remind everyone on the forum (or report for the first time for those who are not aware) that on November 6th, 2009, the American Grand Jury sent US Congressman Nathan Deal (via registered mail) a copy of the 1961 Coast Province General Birth Certificate of Barack Hussein Obama II. "One their website you can view copies of the certified mail receipts to US Congressman Nathan Deal as well as the contents of the mail, i.e., Barack Obama's 1961 Kenyan birth certificate from Mombasa."
The Smith and Blaine documents are totally complimentary and can explain how HI officials can state that Obama's "vital records" say he was born in Honolulu.
If you look at field 6a on the Blaine BC, "Place of Birth", it says "Honolulu" with a footnote "1". So Fukino can say that the HI vital records state that Obama was born in Honolulu!
But the next line in the Blaine BC, Field 6c, contradicts a Honolulu birth when it says "Name of Hospital" "Unknown--Kenya, Africa" The contradiction is restated in field 23, "Evidence for Delayed Filing or Alteration", when it says (explaining the footnote "1" in field 6a): "1. Birthplace: Kenya;Registered Honolulu. HRS 338-17.8 per Grandmother"
The statute cited in field 23 wasn't passed until 1982 so the last part of field 23 beginning with HRS was typed after 1982. The typed line beginning at "HRS" is uneven indicting multiple insertions of the document into the typewriter, perhaps at different times, possibly first in 1961 and then later, sometime after 1982.
It is not clear whether the contents of field 23, as named, are evidence for delayed filing, evidence of alteration or both. The first part of field 23 up to "Honolulu." could be evidence in support of a delayed filing explaining lack of a hospital BC that was typed in 1961. Or the entire footnote could be to explain evidence of alteration i.e. identifying the source of the Kenya birth report, and was typed after 1982.
We don't know whether any further alterations (amendments) of the vital records for Obama were made after this image was obtained. An affidavit from the mother or grandmother could easily have declared that the hospital location and footnote were in error, for example and that would leave only field 6a "Place of Birth" "Honolulu" as valid.
Perhaps there is some obscure HI statute or policy that makes the contents of field 6a govern legally what the HI officials are allowed to publicly report in spite of the Kenya hospital mentioned in field 6c and in the footnote, and that is exactly what they have done! Honolulu!
Or Obama himself may have filed an entirely new delayed filing after 1982 on his own behalf submitting his own evidence and affidavits, and this amended BC from Obama may be the basis of the COLB.
The Blaine BC only shows as being accepted by the Local Registrar in field 20, which is the local filing. But field 22, "Accepted by General Reg." is blank meaning that the Blaine BC does not show as being "accepted" by HI vital records. The Factcheck COLB also only says filed, not accepted. This would explain all of the secrecy.
I agree. Take the bull by the horns so to speak...and send it to him!
Yes, very possible that it was typed in at a later date.
ping...of possible interest...
Thanks, here’s hoping...
Remember people were questioning use of the word "African" in the Factcheck COLB and not "negro" as would be expected? The Blaine BC has both terms in the race field as "Negro - African" and the short form picked up the latter term.
So Fukino and HI officials can say that Obama's long form vital record (Blaine) says he was born in Honolulu while omitting the fact that that same record says the hospital was in Kenya! Privacy laws in HI may preclude them from disclosing or even hinting at the contradiction in the records without facing legal action from Obama.
January 11, 2010 at 11:27 AM
John Charlton: You and Leo DOnofrio might be interested in the thread on Free Republic discussing Hemenways filing of judicial notice of HI Territorial Law 57 allowing the issuance of COLBs to infants not born in HI posted by rxsid. There is also discussion pointing to reasons why the Blaine BC might actually be valid and filed under that law (Blaine discussion begins at comment #57 by rxsid, especially note my comment #121).
A plausible rationale for the notation of a 1982 statute in a footnote in the Blaine BC, which some folks jumped on to declare hoax for appearing in a 1961 document is discussed. The footnote may well have been added after 1982 in field 23, which is where alterations such as a 1982 footnote to explain the discrepancy between location of birth in Honolulu and name of hospital in Kenya would be placed.
The field 6a on the Blaine long form say Location of Birth is Honolulu, yet field 6c Name of hospital says Unknown Kenya, Africa and a post-1982 footnote says the information was provided by Grandmother. So Blaine maps perfectly to the summary Factcheck short form COLB which says location of birth is Honolulu, but that short form doesnt have a hospital name field, so the short form omits any reference to an unknown Kenya hospital.
If the Blaine BC is valid, Fukino and HI officials can state honestly that Obamas vital record says he was born in Honolulu. They might be subject to legal action by Obama under HI statutes if they were to disclose the hospital name on that same vital record is Unknown Kenya, Africa.
"Mr. Charlton replies: There are internal problems with the Blaine document, not to mention provenance issues since the one releasing it, wont confirm the release:
I wrote back on Oct. 19th, in regard to the Blaine Document: The document is also self contradictory, since a Doctor cannot certify a live birth at a foreign hospital. He has to be present to do that.
The first part is a problem, since the one releasing it won't even confirm the release.
However, as to the "Doctor" signing it. Wasn't it determined that the same person signed both boxes, 18 and 19a? If that is true, then whomever signed the "application", also signed the "Dr's" name as well. If that's true, then of course no Dr. signed certifying a live birth at a foreign hospital.
I strenuously dispute the contention that the same person signed on 18a and 19a, staring with the capital Ms and then the 8s in the date.
Here is my response to Charlton refuting his claim that an MD signed in 19a, and note that his subsequent response offered no contradiction to my point but rather only encouraged further citizen journalism:
January 11, 2010 at 12:53 PM
Mr. Charlton: When I look at the Blaine document, I see no certifying signature by a “Doctor” in field 19a “Signature of Attendant” as you claimed at the time, but only the signature of a person designated “Other” and specifically _not_ designated as MD.
While it is true that an MD wouldn't honestly sign as an attendant if they weren't there, a person that accompanied Grandma to the office of the local registrar to “witness” that a Kenya birth in an unknown hospital had been reported to Grandma might well have signed it.
It might be that the policy and procedures for the local registrar mandated putting the declared city of residence as “Location of Birth” in field 6a for out-of-state births allowed under HI Law 57, and for a “witness” to sign as a second person with “knowledge of the birth” to attest on line 19a “Attendant” in the case of a late, out-of-state birth report.
I don't think that the actual attendant at an out-of-state birth be expected to show up at the local registrar's office in HI to sign a late certificate of birth, but a second person with knowledge of the birth could well have been instructed to sign on that line as “Other.”
I strongly suggest that you, Leo DDonofrio and John Hemenway take another look at the Blaine BC. I am disappointed to hear that Blaine wont make the provenance of the original available so far. Again, it maps to the Factcheck COLB and allows Fukino to say that the Location of Birth on the HI vital record says Honolulu without mentioning that it also says that the hospital was Unknown Kenya, Africa.
unbelievable he didn't grasp that!
That would be unreasonable to expect the actual out-of-state attendant to appear locally and sign the late cert. So yeah, it's completely possible and reasonable that someone else signed it as other.
Jim, the eligibility issue has never been before SCOTUS. In the cases brought in other courts, the dismissals have been because of standing of the plaintiffs or jurisdiction of the court, and in the one case of Kerchner vs Soetoro, because of a “lack of claim.”
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.”
The only persons who MIGHT possibly have standing to sue Obama on eligibility grounds are the only two people who might be able to demonstrate direct harm from Obama being President. Those people are John McCain and Sarah Palin. Neither McCain nor Palin has joined any of the 62 lawshits that have challenged Obama’s eligibility nor have either of them submitted an amicus brief (Friend of the court) in support of any of the lawsuits.
The note about Indonesian citizenship is irrelevant. American-born minors can't renounce their citizenship. Nor can their parents do it for them. If Indonesia believed him to be a citizen, that's their problem. They're a screwed up Mooselimb country, anyway.
I have no formal handwriting analysis training and am certainly not disagreeing with your judgement that the signatures were entered by two different persons. The differences in the 'M's and the '8's are, indeed, very obvious. However, I believe it can also be stated that the two signatures perhaps have areas of "similarity" in their general style,letter slant,letter closure properties, etc. Thus, there at least exists the possibility that both signatures were entered by the same person.
What are the ramifications if the same person, presumably Grandma, did in fact sign in both box 18a (as Madelyn Payne Dunham) and box 19a (as Martin Blaine E-?-n). Would this mean that the document must be declared bogus? I don't think we could conclude this!
It's my general impression that virtually all the major players involved in this entire mess, including Grandma, were very adept at "gaming" the system. We have no way of knowing what really transpired 50 or so years ago when the Blaine COLB application document was submitted. I assume conditions in the government records offices at that time were rather disorganized. Hawaii had only been a state for a few years. Perhaps Grandma couldn't or didn't wish to involve another live person as "witness" in this Kenyan-birth, mixed-race matter. Maybe she chose to just forge the name given in box 19a and submit the document herself to the local registrar! Who could now truthfully say that this could not have happened?
Thus, even if the same person signed on 18a and 19a, I believe the document could still be authentic.
“It's my general impression that virtually all the major players involved in this entire mess, including Grandma, were very adept at “gaming” the system.”
What I like about this document is that if accepted on its face, it doesn't require any conspiracy on the part of Grandma. It says she is reporting a birth in Kenya.
My impression is that this form is not a take-home-and-fill-in form, but rather a form that would be filled in by the local registrar office clerk based on a visit to the local registrar office by the witnesses. The witnesses would give the information, the registrar would type it in in the approved format and language (that couldn't be known to a person who was not a registrar clerk) and then the witnesses would be asked to sign the form in front of the clerk, then the clerk would sign. All three signatures are on the same date, presumably at the same office visit.
The name “Blaine” appearing as the legible middle name of the 19a witness and also as the last name of the attorney who put this on the web raises the possibility of a family link between the two. This further reinforces the possibility that the 19a witness is a real person and not made up by Madelyn.
Professions can run in families and the 19a Blaine middle name witness could be an attorney as well, perhaps Madelyn's family attorney who might actually be the source of the document, but it could just be a friend.
The document, if genuine, was altered on its face with the footnote sometime after 1982, so if the 19a witness who signed the document was the person who gave it to Ohio attorney William E. Blaine, the witness would have had to have obtained a copy of the document subsequent to 1982. Perhaps Madelyn and her attorney or friend of 20 years at this point were involved in trying to clarify BHO II’s legal status at that time, for example to help him get a US passport.
ping...should have copied you!
Let's assume, for the sake of your argument, that he was born in HI.
Do you then, believe that someone born a subject of the British crown, born in HI, is a Natural Born Citizen of the US? That is, someone born with multiple citizenship's?
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 judiciarys 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 courts 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 claimants 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.
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