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:
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 sys