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:
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?