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Thursday, November 13, 2008

Obama court hearing to focus on actions of Hawai'i officials, need for disclosure

Obama author Andy Martin heads for historic court hearing in Honolulu. Martin will arrive in Honolulu Friday evening to prepare for a historic court hearing in the Circuit Court Tuesday, November 18th at 10:30 A.M. "Some people want to run up the white flag and kiss Obama's fanny," Martin says. "In the words of John Paul Jones, 'I've just begin to fight.' Unless and until Obama releases records about his past—his birth certificate, college files and similar information—he lacks legitimacy. I do not think any American owes loyalty to Obama's radical socialist revolution, which is bent on destroying our way of life. Why will Barack Obama not release his original, typewritten 1961 birth certificate?"

[This document has been reformatted for the Internet]

Post Office Box 1851
New York, NY 10150-1851
Toll-free tel.(866) 706-2639
Toll-free fax (866) 707-2639
E-mail (text only):


(Declaratory Judgment)-



Official capacity as Governor
Of the State of Hawai’i,
official capacity as Director
of the Department of Health,



Preliminary Statement
When this case was filed on October 17, 2008, the status of the document to which Plaintiff was seeking access was one involving intense political curiosity. Today, the underlying principles of this lawsuit have irretrievably morphed: the status of the document sub judice has now become a part of American history. Plaintiff's right to examine the original 1961, typewritten document—now a crucial record of American history—has become overwhelmingly stronger.
Therefore, for the reasons that follow in this Memorandum, this Court at the hearing on November 18th must apply the legal principles applicable to access to historical documents.
The birth certificate and efforts to
manipulate the birth certificate

A. Barack Hussein Obama (hereinafter "Obama") was apparently born in Honolulu in August, 1961. HHHHe may have been born elsewhere and had his birth registered in Honolulu. We do not know.
B. The State of Hawai'i generated a typewritten Certificate of Live Birth ("COLB") for Mr. Obama in 1961. There may have also been a separate document issued by the hospital, if he was born in a hospital, certifying to the birth. These documents collectively will be referred to as the "birth certificate." We know that the 1961 document is in existence because defendant Fukino claimed on October 31st that she had examined the document, see Exhibit A.
C. In June, 2008 Obama released a copy of his COLB to some media, though not all. See Exhibit B. The COLB was purported to be an "original," although obviously it bears no resemblance to the original, typewritten 1961 document.
In response, some individuals have posted on the Internet copies of their temporally similar COLB's: they bear no relationship to Exhibit B, see e.g. Exhibit C, furnished to Plaintiff by a civic-minded citizen (original copy available on request). Exhibit C contains considerably more detailed information than Exhibit B (p. 3).
D. The firestorm over where Obama was born, and to whom, continued to grow. After Plaintiff filed this lawsuit, seeking access under both the Hawai'i Public Health Statistics Act as well as the Uniform Information Procedures Act (UIPA"), defendant Fukino apparently ordered retrieval of the 1961 original and claimed to have examined it.
But Fukino went further, soliciting media coverage and expressing opinions about the ultimate facts contained in the document. Fukino also tried to use her professional access to the record to politically attack citizens who had raised legitimate questions about the document, see Exhibit B, p. 1.
E. On November 4, 2008, Obama became President-elect. Whatever prior status the COLB had as a document of intense political interest, a fortiori on November 4th the document passed "into the ages" as a vital, original manuscript of American history.
F. This Court has issued an Order to Show Cause ("OSC") why Plaintiff should not be granted access to and a copy of the file relating to the original, typewritten 1961 COLB and any related documents from the hospital on which the COLB is based. The Attorney General ("AG") has filed a cross-motion to dismiss. The court is scheduled to conduct a hearing on all matters on November 18, 2008.
The applicable legal principles in this lawsuit
Plaintiff respectfully submits that there are three overarching principles of law that govern a procedural analysis of this litigation.
The first principle is the well-established doctrine of waiver.
The second principle is the canons of statutory construction that apply to analysis of the claim in this lawsuit.
Finally, since this lawsuit was filed under Hawai'i law, Hawai'i law controls the decision of this Court.
Each issue will be addressed in turn.
The waiver issue
A. The Ashwander doctrine
Hawai'i has adopted the Ashwander doctrine, State v. Lo, 66 haw. 653, 675 P.2d 754, 757 (Haw. 1983) citing Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466 (1936)(Brandeis, J., concurring), see also State v. Poaipuni, 98 Haw. 387, 49 P.3rd 353, 367 (Haw. 2002)(Moon, J., concurring). Ashwander provides that a court will decide a case on the narrowest possible grounds necessary to a decision.
In this lawsuit, for example, if the case can be decided on the basis of "waiver," the Court does not need to resolve statutory questions. If the Court can decide the issues based on statutory construction of the plain language and structure of the statute, legislative intent is unnecessary. If statutory construction is sufficient, the Court need not address constitutional claims.
B. Hawai'i waiver principles
Hawai'i law clearly recognizes the principle of waiver in civil matters, Uncle John's vs. Mid-Pacific, 71 Haw. 412, 794 P.2d 614, 616-617 (Haw. 1990), Great American v. Aetna Casualty, 76 Haw. 346, 876 P.2d 1314, 1319 (Haw. 1994). The best analysis of the definition of waiver that falls squarely on the convoluted issues of this case, however, is found at Ikeoka v. Kong, 47 Haw. 220, 386 P.2d 855, 870 (Haw. 1963) in a concurring opinion by Justice Lewis:
'The question of whether or not a given state of facts brings the case within principles of the law of waiver is not always an easy one to determine. In Pabst Brewing Co. v. Milwaukee, 126 Wis. 110, 116, [105 N.W. 563] a statement of the principles which should govern in such cases, and which meets with our approval, is as follows: 'It would seem that the more satisfactory ground on which to support the doctrine of waiver is that it is a rule of judicial policy, the legal outgrowth of judicial adhorrence, so to speak, of a person's taking inconsistent positions and gaining advantages thereby through the aid of courts,--a rule by which, regardless [47 Haw. 249] of absence of any element of estoppel or consideration as those terms are popularly understood, the maxim that one shall not be permitted to blow hot, then with advantage to himself turn and blow cold, within limits sanctioned by long experience as required for the due administration of justice, has been prohibitively applied. * * *'' Scott v. Pilipo, 25 Haw. 386, 391.
C. Obama's waiver
Obama delivered a purported "original" copy of his COLB to, and apparently other Internet media as well, see Exhibit B. Clearly, what Obama claimed was not true. The document he produced was not even remotely a copy of the original, typewritten 1961 paper in Dr. Fukino's possession. Having (i) released what he claimed was the "original," and (ii) having been found to have dissembled, Obama has waived any objections to release of the "real" original document.
In the words of Justice Lewis, Obama cannot be allowed to "blow hot" and then use the defendants as a beard to "blow cold." He claimed his COLB was an "original," when in fact it was a modern, laser-printed facsimile of official records (an "abstract") and not even remotely a copy of the 1961 typewritten original. Since Obama has purported to disclose the "original," he has placed the defendants' copy of the "actual" original in the public domain for comparative purposes.
The defendants are now estopped from asserting that access should be denied to the 1961 typewritten original when Obama has expressly claimed that he published his "original" on the Internet, see Exhibit B (" staffers have now seen, touched, examined and photographed the original birth certificate.")'s statement was objectively and verifiably false. The law does not allow such a blatantly fraudulent maneuver to stand: the claim that the laser-printed document was an "original" 1961 document was obviously untrue. may have been fooled; plaintiff was not (which is why he is respected nationally and internationally as an investigative writer and researcher, see Part V (A), infra).
It is unavoidably clear that Obama has sought to "blow hot" and then "blow cold." He claimed his COLB was an "original," when in a fact it was a modern, laser-printed facsimile from official records (an "abstract") and not even remotely a copy of the 1961 typewritten original. Since Obama has purported to disclose the "original," he has placed the "actual" original in the public domain for comparative purposes. The defendants are estopped from now asserting that access should be denied to the 1961 typewritten original.
The law does not permit a government agency to be used to shield fraudulent manipulation; the claim that the laser-printed document was an "original" 1961 document was obviously untrue. Obama, having waived access to the "original" by his own admission, the defendants cannot now turn his waiver on its head and say they will deny access to their copy of the original document.
Because his secrecy rights were waived by Obama himself in releasing the document, the defendants have no right to engage in further manipulation and legerdemain to provide political cover for management of the truth. That is not their role and, most egregiously, their actions are a clear misuse of the legislature's intent in creating a basis for bona fide secrecy, but certainly not manipulative secrecy.
D. Fukino's waiver
Defendant is a medical doctor and a custodian of health records. She is neither a political battering ram nor an agent of presidential politics. She solicited a role as the former while inserting herself in the latter.
In Justice Lewis' language, Dr. Fukino can no more
"blow hot" and then "blow cold" than Obama. Exhibit A and other local coverage reflects that Fukino solicited coverage on the last weekend of the presidential election by purporting to express an expert opinion on a document that she refused to make public and where she was not remotely qualified as an expert. The original 1961 COLB may confirm what she claimed, or it may not. It may eliminate questions or it may raise new ones. We simply don't know.
In a democracy, and under clear principles of Hawai'ian law stated below, we don't have to take Fukino's word for what the document is or contains; we have a right to examine the original.
Dr. Fukino cannot make declaratory statements about a public record and then refuse to allow the media to cross-examine her claims by examining the original document that she is discussing. She clearly manifested an attempt to use the statutory secrecy of her office for an improper and unlawful purpose, political manipulation. (Parenthetically, Fukino's desperate last-minute efforts only confirm the strength and success of Plaintiff's bona fide efforts to raise concerns about the manipulative actions of Hawai'i officials.)
If Fukino had merely exercised her right to go into the vault and examine the document in question, that would have in no way constituted a waiver. But she far exceeded her statutory duties, solicited massive media attention and interjected herself into political controversy and sought to bolster Obama on the final weekend of the election. That behavior blatantly exceeded both her statutory duties and professional competence, all while seeking to manipulate a document in her possession and control. The law does not allow a public official to so openly manipulate material and information in her possession.
Even if Obama had not already waived access to the material in Fukino's possession, there is no way anyone can test the accuracy and veracity of Fukino's unconditional claims without actually seeing the document concerning which she was offering testimony. Entirely and completely independently of Obama's waiver, Fukino waived the secrecy provisions of the statute by her own conduct or misconduct.
E. Historical waiver
Whatever may have been the analytical principles applicable to determining access to the material in question prior to November 4th, it is clear that on November 4th the status of the documents changed from political records to historical documents. There is no way Hawai'i can justify imposing secrecy on material involving a prominent figure in American history.
No one can legitimately argue that someone is going to engage in identity theft and hold himself or herself out as "Barack Obama," using and misusing the COLB. That contention is absurd on its face. So what is the basis to persist in concealing a document that has become controversial because of Parts C and D above? None whatsoever.
The statute in question was clearly intended to protect the privacy rights of private citizens, not to prevent access to vital historical material.
The statutory construction issue
A. The AG's omitted/manipulated statutory language
The AG's submission to this Court cited the relevant statutory language out of context and sought to turn the broad statutory language in exactly the opposite direction from the express language in the law itself. This legerdemain is unacceptable and should raise the eyebrows of the Court. Any time a public official cites a statute's language out of context, a question is raised as to "why?"
The critical statutory language of HRS §338-18(b) that the AG omitted from its Motion to Dismiss states:
(b) The department shall not permit inspection of public health statistics records, or issue a certified copy of any such record or part thereof, unless it is satisfied that the applicant has a direct and tangible interest in the record. The following persons shall be considered to have a direct and tangible interest in a public health statistics record:

The statute then goes on to enumerate the list of persons cited by the AG. The AG's omission of the introductory language to the section cited, when coupled with the AG's attempts to alter the context of the statutory language, is a serious distortion of the law's plain language.
Section 338-18(b) merely provides a list of persons who ipso facto are entitled to have a direct interest; by no reasonable reading can this language support the AG's position that the list following the preamble is exclusive instead of exemplary.
The term "direct and tangible interest," moreover, is not defined in the statute even though other critical terms are, see HRS §338-1. The omission of a definition of the term "direct and tangible interest," when considered in the context of 338-1, shows conclusively that the legislature did not intend for the exemplars provided in the statute to be a self-limiting and exclusive list of persons entitled to access.
Indeed, the statute itself provides an open-ended opportunity for access in 18(b)(9) by vesting this Court with untrammeled and unrestrained authority to order access to any person on such terms as the Court considers just and appropriate. No one can reasonably argue that 338-18(b)(9) in any way contains or places any limiting language on the common law and common sense authority of this Court to grant relief pursuant to Subsection (9), see Part V (B), infra.
B. Hawai'i principles of statutory construction
In the absence of a statutory definition for "direct and tangible interest," the court is left to fashion a definition or interpretation out of common language and common sense (see Part V (B), infra). As the Hawai'i ICA stated in Carlisle v. One (1) Boat, 118 Haw. 107, 185 P.3rd 855, 860 (Haw. ICA 2008):
A. Statutory Interpretation-Civil
Questions of statutory interpretation are questions
of law to be reviewed de novo under the right/wrong
Our statutory construction is guided by the following well established principles:
[When construing a statute,] our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.
In construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.
This court may also consider the reason and spirit of the law, and the cause that induced the legislature to enact it to discover its true meaning.
Lingle v. Hawai‘i Gov't Employees Ass'n, AFSCME, Local 152, 107 Hawai‘i 178, 183, 111 P.3d 587, 592 (2005) (internal quotation marks, brackets, and ellipses omitted) (quoting Guth v. Freeland, 96 Hawai‘i 147, 149-50, 28 P.3d 982, 984-95 (2001) ).
Is the underlying Health Act ambiguous? Plaintiff would argue that it is not. The statute clearly provides a list of persons or entities that are automatically entitled to access, but nowhere does the law state that the list is excusive.
The statute itself contains in Subsection (9), a wide-open grant of jurisdiction to order access to records based on any terms the Court finds just and reasonable. Nowhere is the Court's power under Subsection (9) limited or confined. Clearly, the legislature was anticipating precisely such a case as this one, where a legitimate author (see Part V (A), infra) and columnist seeks access to what have now become vital records in American history.
Any reasonable construction of the statutory language would yield ineluctably to the conclusion that the legislature has provided broad powers to any court to allow access on terms the court believes are just and reasonable.
The constitutional issues
A. The Plaintiff's status
Plaintiff is a national and international authority on Obama. He authored the first commentary to raise questions about Obama's family history, in 2004. He has authored a 400+ page best selling book, see Exhibit D attached hereto, "Obama: The Man Behind The Mask."
He has been asked to opine about Obama locally, nationally and internationally, on television and radio.
Plaintiff is also very well known because he has dug deeply into Obama's past and continually produced controversial interpretations of Obama's heritage and life experiences, particularly in areas where Obama has sought to conceal or occlude his prior associations. Thus, by no means is Plaintiff only a member of the "general public" or someone who has not established both his own and his audience's specialized interest in Obama.
B. The common law/constitutional right to access
Bona fide members of the media and authors such as Plaintiff enjoy a qualified constitutional and common law right to access vital public records. That general principle applies a fortiori to historical records concerning a President-elect of the United States.
The common law/constitutional right to access vital public records was explicitly set forth in two directly applicable Hawai'i Supreme Court cases, Honolulu Advertiser v. Takao, 59 Haw. 237, 580 P.2d 58 (Haw. 1978)("Takao"), and Estate of Campbell, 106 haw. 453, 106 P.3rd 1096 (Haw. 2005)("Campbell").
A. Because the term "direct and tangible interest" is not defined in the statute, this Court can look to Takao, where the Court stated that "We construe the phrase 'any party' to mean any person who seeks the transcript for a legitimate and proper purpose." 580 P.2d 61. Here, Plaintiff seeks access to the original typewritten 1961 COLB for what are facially "legitimate and proper purposes."
B. Takao establishes an unequivocal common law right to copy public records, 580 P.2d 61. The common law right is critical because in Campbell the Supreme Court underscored that its decision rested on the common law and did not need to go to the extent of making a constitutional determination, 106 P.3rd 1108 fn. 26:
Additionally, inasmuch as our policy of judicial openness is rooted in the common law, see Takao, 59 Haw. at 239, 580 P.2d at 61 (concluding that the "public does generally have the right, established by the common law, to inspect and copy public records and documents, including judicial records"), we need not reach the issue of whether the right of access is also protected under both the federal and our state constitutions.

C. The Hawai'i Supreme Court decided an issue applicable above, namely how to construe the statute, in Campbell, 106 P.3rd 1101, where the Court stated:
Whether Appellants constitute "interested persons" as defined in HRS § 560:1-201 is a matter of statutory interpretation and therefore a question of law subject to de novo review. Ing v. Acceptance Ins. Co., 76 Hawai'i 266, 874 P.2d 1091 (1994). As oft-stated, "our primary duty [when interpreting statutes] is to ascertain and give effect to the intention of the legislature, which is obtained primarily from the language of the statute itself." Id. at 270, 874 P.2d at 1095. We have also noted on several occasions that "where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning." Id. (citing AIG Hawaii Ins. Co. v. Estate of Caraang, 74 Haw. 620, 634, 851 P.2d 321, 328 (1993)). In this case, the language of the relevant statutes is plain and unambiguous.
Plaintiff submits that the statute sub judice is equally "plain and unambiguous" in (i) placing no limits on the categories of persons entitled to access to records and merely providing an exemplary list of persons who receive automatic a priori access, and (ii) allowing a court to exercise its general jurisdiction concerning access determinations, as provided by Subsection (9). The Supreme Court also noted for purposes of this lawsuit that the general grant of jurisdiction under HRS §603-21.9 could be read in pari materia with Subsection (9) of the Health statute. 106 P.3rd 1107 fn. 21.
While the foregoing decisions did not involve access to a birth certificate, the broad constitutional right of access to public records fully encompasses the historical documents for which access is sought in this case.
The Uniform Information Practices Act
When this case began, Obama was a political figure. Today he is part of American history. Plaintiff would admit that as an abstract matter, it is a general canon of construction that the particular statute should control over the general. Thus, all other factors being equal or normal, HRS §338-18(b) would control over the UIPA, HRS §92F. The AG's claim in this regard would not be out of line in an ordinary lawsuit.
But this is no longer an ordinary case involving an ordinary citizen. The COLB relates to a President-elect of the United States. HRS §338-18 was intended to apply to the common or garden-variety information of an ordinary private citizen or quasi-private citizen. Obama is no longer a private citizen or quasi-private citizen. He is a part of American history. As such, this Court can properly apply the broader disclosure provisions of the UIPA to the issues presented in this case.
Plaintiff is no longer seeking access to a private person's personal records: he is seeking access to vital, original, historical documentation concerning the President-elect of the United States.
The Attorney General's arguments
A. With due respect, the AG has filed a motion to dismiss raising various defenses. The disingenuousness of the AG's arguments reflects a total lack of awareness of the post-November 4th reality, and bears no relationship to the foregoing principles and cases set forth in this Memorandum. The AG's arguments will be addressed in turn.
B. The AG's "standing" issue
1. The two "standing" cases cited by the AG have no relevance to the issues in this lawsuit. Where individuals seek to challenge governmental action, general standing principles apply. Here, an author seeks access to a public record that, on a number of grounds, is presumptively subject to inspection and copying, supra.
2. The cases cited by the AG also make no sense because, as shown in Plaintiff's prior arguments, the Hawai'i Supreme Court has established "openness" as the standard and empowered the Court to adjudicate disputes concerning access, Campbell, supra. How could someone seeking access under statutes--Subsection (9) and the UIPA having vested courts with jurisdiction to hear disputes--not have standing to seek access through judicial relief? The AG's standing claims border on nonsense.
C. The AG's "failure to state a claim" issue
Based on the prior Hawai'i case law which Plaintiff has cited, the AG's "failure to state a claim" argument is nonsense.
D. The AG's "no right to obtain a vital record" issue
1. The federal case law cited by the AG is federal law. Plaintiff rests his entire claim on Hawai'i law. The previously cited Hawai'i Supreme Court's decisions trump federal courts on questions of Hawai'i law and the power of this Court to grant relief.
2. The AG ignores the fact that in balancing the competing interests, Plaintiff is a legitimate author seeking access to a document of immense historical interest.
3. The AG seems to ignore (i) that Obama and Fukino have waived their claims, thereby at a minimum diluting their claims to privacy and (ii) a birth certificate with information 48 years old hardly constitutes "private" information, particularly when the person whose record is being sought has claimed to have already released "the original."
E. The AG's service of process issue
The Governor's office (though not the Governor in person) was personally served with the papers in this lawsuit, as was the AG's office. The AG trivializes the significance of this lawsuit and the important public issues presented by even raising such a defense. Moreover, Plaintiff's Order to Show Cause ("OSC"), which was issued by the Court, was properly served on the AG and brings the AG before the Court on Plaintiff's own moving papers.
By asking this Court to permit an expedited piggyback hearing and filing a motion to dismiss on a piggyback basis with Plaintiff's own hearing, the AG may have waived any claim of lack of service. Otherwise, the AG can respond to the OSC and Plaintiff will object to a hearing on service of process when the time to serve process has not finally expired.
The AG is claiming on the one hand that it wants an expedited hearing for which it has been fully served, while on the other hand objecting to service of process. Does the AG want an expedited hearing with actual notice, or is it going to litigate some form of hypothetical notice that it is claiming?
Plaintiff has requested clarification from the AG as to whether that office is going to pursue that claim in light of the video evidence of service of process.
Finally, the AG's office has failed to respond to Plaintiff's UIPA demand, attached hereto as Exhibit E. The Court should draw a very serious adverse inference from the AG's silence and lack of any response to UIPA, Ramil v. Keller, 68 Haw. 608, 726 P.2d 254 (Haw. 1986); Stender v. Vincent, 92 Haw. 355, 992 P.2d 50 (Haw. 2000). Will there have to be a second round of UIPA litigation? The AG has been silent.
The fact that the AG is reduced to making trivial defenses shows the paucity of substance in the arguments it is presenting in opposition to Plaintiff's powerful and overwhelming case for access.
As the foregoing facts establish, there has been a blatant attempt to distort, mislead, misrepresent and manipulate a vital record establishing Mr. Obama's birth. For some reason he does not want the original COLB to see the light of day. Why?
Whatever the Court's view of the statutory language concerning an ordinary private citizen, those views must now yield to the imperatives of history: the documents being sought now relate to American history and must be disclosed on that basis to media and scholars such as Plaintiff.
The legislature never intended that personal privacy for ordinary citizens could be used to prevent access to vital records of American history.
A reader is left with the unavoidable, nagging question: What does Obama have to hide, that he has put Plaintiff and the American people through a lawsuit to see the original, typewritten 1961 COLB? That question will be answered some day, in some way.
As Plaintiff shows above, this Court has the power to make the disclosure decision now. Most respectfully this Court is asked to do so forthwith. How can a President of the United States establish his legitimacy as a leader when he is hiding original documents about his life and origins? How?
Merely to reflect on the underlying odor of this lawsuit compels the question, "What are they trying to hide?" What? The defendants' evidence on that question is what authors, researchers, writers and columnists such as the Plaintiff have a constitutional right to examine and answer.
This Court should answer the threshold question by directing prompt disclosure to Plaintiff of the requested materials.
At the end of the day this lawsuit represents a test of and challenge to Hawaii's state governmental institutions and governing philosophy: is Hawai'i going to recognize and respect its obligations to history, or is the state government going to be run as a private club that conceals what may be unpleasant but what is nevertheless vital historical evidence?
Hawai'i, by an accident of history, has become the repository of what are now crucial historical records concerning the origins of a President. Under any reasonable interpretation of research and inquiry, such historical documents should be available to inspection and copying by the media and recognized writers/researchers such as Plaintiff. The Court should respect these imperatives and tell the defendants to stop stalling and release the records to the Plaintiff.
Respectfully submitted,
Plaintiff Pro se


New York, NY
November 13, 2008

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Blogger smrstrauss said...

Re: Why will Barack Obama not release his original, typewritten 1961 birth certificate?"

First, what do you mean "release"? If you mean post it on line, you know the difficulty with that. No one ever sees the details, so many people question that the document is authentic.

So, you probably mean show someone the real physical document - the original paper.

However, who to show it to? So far, no court has asked to see anything. If a court does, then Obama can and will provide the document.

But your comment implies that he should make his birth certificate public even before a court asks for it? If so, to whom?

The next thing, of course, is that absent a court asking for the birth certificate, the only ones asking for it are right-wing bloggers. So why should he do anything to make them happy?

The next thing, of course, is since there is no evidence that he was born anywhere than in Hawaii, there is no need to show anything. However, he has already shown the certification of live birth, and the officials in Hawaii have said that that proves he was born in Hawaii.

1:55 PM  
Blogger QueMan said...

Mahalo Nui Loa Mr. Martin from those that believe in your efforts to ensure that our great country does not face a Constitutional crisis due to one man and his group of corrupt friends.

Aloha and be safe!

3:26 PM  
Blogger Andrew said...

smrstrauss, I do not understand why Obama will not release his original long-form "vault copy" birth certificate. He could put it online like he already did with the laser-printed short form:

John McCain released his origainl long-form "vault copy" birth certificate:

Why won't Obama? It is undisputed that Barack Obama was travelling far and wide during the month of his birth, including travelling with his mother to the State of Washington in August 1961:,0,91024,full.story

The question is whether he was making a round trip from Hawaii, or was instead travelling to Hawaii from another location. This seems like a legitimate question, especially in view of alleged statements by his step-grandmother that he was born n Kenya:

I am about 98% certain that Obama was born in the United States. However, the public certainly has a legitimate interest in ruling out that tiny 2% chance, IMHO.

9:19 PM  
Blogger gl1963 said...

This comment has been removed by the author.

11:16 PM  
Anonymous Anonymous said...

Here's a website that claims to have proof that the KOS COLB is a forgery. I looked at it and it looks rather compelling:


11:20 AM  
Blogger Devil's Advocate said...

Time to play devil’s advocate.

Procedurally and substantively, the complaint is flawed.


Birth certificates are not public records under Hawaiian law. They are vital records with restricted access and the fact that there may (or may not) be intense national speculation or public interest in a particular record does not change its status. Nor does being elected president of the United States somehow transform an individual’s private records into public records either. If the legislature wants to make an exception for elected officials it can do so, but the courts cannot create one.

Similarly, being a member of the media or a well-respected author (self-described or otherwise) does not give someone greater access to public records or special access to restricted records.

And for many of the same reasons that individuals lack standing to challenge a candidate’s citizenship in federal court, they also fail to justify their reasons for needing access to a candidate’s birth certificate in state court. To the extent these issues don’t overlap, it would require much more than speculation, Internet rumors, and rank hearsay to support such a claim.

Sub-paragraph (9) does not confer automatic standing on anyone and it does not allow fishing expeditions into private records.


It may be true that an elected official has less personal privacy than the ordinary citizen and, as a result, records which would otherwise be unavailable to the general public might lose that protection.

Lambert v. Belknap County Convention, 949 A.2d 709 (N.H. 2008) (finding that the public has a legitimate interest in learning relevant information about a candidate who has chose to run for office):

A candidate's decision to apply for an elected public office places his or her qualifications for that office at issue, and, consequently, requires members of the public, either individually or through their representatives, to evaluate the particular candidate.

Thus, a candidate voluntarily seeking to fill an elected public office has a diminished privacy expectation in personal information relevant to that office. Cf. Physicians Committee for Resp. Medicine v. Glickman, 117 F.Supp.2d 1 (D.D.C.2000) (finding that nonappointed applicants for membership on advisory committee for United States Department of Agriculture had minimal privacy interests in their curricula vitae); City of Kenai, 642 P.2d at 1324; Capital City Press v. Metro. Council, 696 So.2d 562, 567-69 (La.1997) (finding that applicants for public employment have no privacy interest in their resumes); Gannett River States Publ. v. Hussey, 557 So.2d 1154, 1159 (La.App.1990) (finding that expectations of privacy of applicants for position as chief of fire department in a substantial municipality “was not objectively reasonable under the circumstances”), writ denied, 561 So.2d 103 (La.1990).

Finally, in balancing the foregoing interests, we conclude that the public's interest in disclosure significantly outweighs the privacy interests of the candidates. The sole reason for the application process was the mid-term vacancy caused by the retirement of a sheriff who had been chosen by the people in a prior election.

The public has a significant interest in information about the candidates who will fill the elected position. By applying to fill an elected public office, the candidates surrendered much of “the privacy secured by law for those who elect not to place themselves in the public spotlight.” Hatfield v. Bush, 540 So.2d 1178, 1182 (La.Ct.App.1989) (citation omitted). Thus, the public's interest in disclosure outweighs the candidates' privacy interests in nondisclosure.

Also, Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978) (finding that even financial records, which would ordinarily be considered private, can be subject to disclosure when a person runs for public office):

The extent of the interest is not independent of the circumstances. Plaintiffs in this case are not ordinary citizens, but state senators, people who have chosen to run for office. That does not strip them of all constitutional protection. Nixon v. Administrator of General Services, 433 U.S. 425 at 457, 97 S.Ct. 2777 at 2797, 53 L.Ed.2d 867 at 900.

But it does put some limits on the privacy they may reasonably expect.

The first amendment puts much greater restrictions on libel and slander actions by public officials or public figures than similar actions by private parties. New York Times v. Sullivan, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, established that public official must show “actual malice” to recover for libel. A public official, for purposes of the New York Times test, includes elected officials and candidates for those positions, appointed officials, and employees “who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs”. Rosenblatt v. Baer, 1966, 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597. By comparison, private parties need only show fault of some kind to recover actual damages. See Gertz v. Robert Welch, Inc., 1974, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789; Time, Inc. v. Firestone, 1976, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154. Even in financial matters, public officials usually have less privacy than their private counterparts. The salaries of most officials, including federal judges, are matters of public record.

Financial privacy is a matter of serious concern, deserving strong protection. The public interests supporting public disclosure for these elected officials are even stronger. We join the majority of courts considering the matter and conclude that mandatory financial disclosure for elected officials is constitutional.[FN26]

FN26. See Fritz v. Gorton, 1974, 83 Wash.2d 275, 517 P.2d 911; Stein v. Howlett, 1972, 52 Ill.2d 570, 289 N.E.2d 409; Montgomery County v. Walsh, 1975, 274 Md. 502, 336 A.2d 97; County of Nevada v. MacMillen, 1974, 11 Cal.3d 662, 114 Cal.Rptr. 345, 522 P.2d 1345; Evans v. Carey, 1976, 53 A.D.2d 109, 385 N.Y.S.2d 965, aff'd, 1977, 40 N.Y.2d 1008, 391 N.Y.S.2d 393, 359 N.E.2d 983; Goldtrap v. Askew, Fla.1976, 334 So.2d 20; Illinois State Employees Ass'n v. Walker, 1974, 57 Ill.2d 512, 315 N.E.2d 9, cert. den. sub nom. Troopers Lodge No. 41 v. Walker, 1974, 419 U.S. 1058, 95 S.Ct. 642, 42 L.Ed.2d 656; In re Kading, 1976, 70 Wis.2d 508, 235 N.W.2d 409; Klaus v. Minnesota Ethics Comm'n, 1976, 309 Minn. 430, 244 N.W.2d 672; Kenny v. Byrne, App.Div.1976, 144 N.J.Super. 243, 365 A.2d 211.

And, Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 567 N.E.2d 912 (Mass. 1991):

Past cases recognize that a person may relinquish a privacy right by engaging in certain activities, or by placing himself in certain contexts where his legitimate expectation of privacy is reduced. See, e.g., Pottle v. School Comm. of Braintree, 395 Mass. 861, 866, 482 N.E.2d 813 (1985) (“Public employees, by virtue of their public employment, have diminished expectations of privacy”); Broderick v. Police Comm'r of Boston, 368 Mass. 33, 44, 330 N.E.2d 199 (1975), (right of privacy may be surrendered by public display); Cefalu v. Globe Newspaper Co., 8 Mass.App.Ct. 71, 77, 391 N.E.2d 935 (“The appearance of a person in a public place necessarily involves doffing the cloak of privacy which the law protects”).

However, members of the media, authors, and journalists (self-described or otherwise) do not have any greater right of access to public records than the average, everyday “Joe the Plumber.”

If it’s available to the media, it’s available to the general public. And if it’s not available to the general public, the media or “legitimate authors” don’t have some type of hybrid access or special key. Branzburg v. Hayes, 408 U.S. 665, 684-85 (1972); ACLU v. State of Miss., 911 F.2d 1066 (5th Cir. 1990) (where the state has a legitimate interest in not making information available to general public, the press has no special right of access to it).

It’s worth noting that although birth certificates are vital records, they’re not public records under Hawaiian law as they may be in other states. Conflating the two terms in the context of a lawsuit doesn’t change that critical distinction.

In any event, a long line of both federal and state case law has clearly established that the press has no greater right of access to public records than does the general public. See Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626 (1972); In re Express-News Corp., 695 F.2d 807, 809 (5th Cir.1982); Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 167-68 (3rd Cir. 1993) (press has no greater right of access to public records than does the general public).

Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 529 F.Supp. 866 at n. 70 (D.C. Pa. 1981):

Under the First Amendment, the press enjoys no greater access rights than the public generally. Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 1318, 55 L.Ed.2d 570 (1978); Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 428 (5th Cir. 1981). This principle is at least equally applicable to access rights under the common law, which accords no special privileges to the press.

Com. v. Silva, 864 N.E.2d 1 (Mass. 2007) (“Like the right to attend court proceedings, the right of the media to gain access to judicial records derives entirely from the public's right of access, and the media have neither a greater nor a lesser right than any other member of the public.”).

California State University v. Superior Court, 90 Cal.App.4th 810, 108 Cal.Rptr.2d 870 (Cal. App. 2001) (in determining whether public records come within catchall exception to disclosure requirement under California Public Records Act, purpose of the requesting party in seeking disclosure cannot be considered, and it is also irrelevant that the requesting party is a newspaper or other form of media, because the media have no greater right of access to public records than the general public).

City of San Jose v. Superior Court, 74 Cal.App.4th 1008, 88 Cal.Rptr.2d 552 (Cal. App. 1999) (it is also irrelevant that the requesting party is a newspaper or other form of media, because it is well established that the media has no greater right of access to public records than the general public. Nor is the convenience of researchers a factor to be considered. “It was never suggested that the FOIA would be a boon to academic researchers, by eliminating their need to assemble on their own data which the government has already collected.”).

Rogers v. Superior Court, 19 Cal.App.4th 469, 23 Cal.Rptr.2d 412 (Cal. App. 1993) (although many requests under the Act are filed by members of the media, they have no greater right of access to public records than members of the general public).

Com. v. Frattarola, 485 A.2d 1147 (Pa. Super.1984) (media does not have a greater right of access to public records than what is enjoyed by the general public).

Hyde v. City of Columbia, 637 S.W.2d 251 (Mo. App. 1982) (“The right of the press for access to governmental records, rather, is no greater than by the public generally.” Pell v. Procunier, 417 U.S. 817, 850, 94 S.Ct. 2800, 2815, 41 L.Ed.2d 495 (1974)).

City of Jackson v. Jackson Sun, Inc., 1988 WL 11515 (Tenn. App.1988):

At common law, there was no “right to know.” Under the common law, a citizen was given access to public records only when he could show that the purpose of inspection was to vindicate a public or private right. See State ex rel Conran v. Williams, 96 Mo. 13, 8 S.W. 771, 773 (1888). Furthermore, the right of the media to access of governmental records is no greater than the right of the public generally. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974).

In re Midland Pub. Co., Inc., 362 N.W.2d 580 (Mich.1984):

There is no authority establishing a constitutional right to inspect public records. “Michigan has long recognized a common-law right to access to public records. Burton v Tuite, 78 Mich 363; 44 NW 282 (1889); Nowack v Auditor General, 243 Mich 200; 219 NW 749 (1928). However, since a common-law right rather than a constitutional right is involved, the Legislature may restrict the general broad right of access to public records. See Booth Newspapers, Inc v Muskegon Probate Judge, 15 Mich App 203; 166 NW2d 546 (1968).” Midland Publishing Co., supra, 113 Mich.App. pp. 62-64, 317 N.W.2d 284. We also note that the press has no greater right of access to public records than does the public generally.

Put simply, being a member of the media or even an intensely curious author armed with a controversial topic does not somehow grant someone a greater right of access to public records.

And, again, birth certificates are not – not – public records under Hawaiian law in the first place. Nor does being elected president of the United States suddenly transform an individual’s private records into public records either. If the state legislature wants to make an exception for elected officials it can, but it’s not for the courts to create one. 808 Development, LLC v. Murakami, 141 P.3d 996 (Hawaii 2006) (when a statute is without exceptions, the courts should not create them); State v. Keawe, 108 P.3d 304 (Hawaii 2005) (court declines to create a remedy where none exists, as that is within the purview of the legislature); State v. Walker, 100 P.3d 595, 602 (Hawaii 2004) (“The court cannot change the language of the statute, supply a want, or enlarge upon it in order to make it suit a certain state of facts. This is because we do not legislate or make laws.”).

“It can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of a particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process.” U.S. v. Richardson, 418 U.S. at 179 (1974).

Recently, a federal court in Pennsylvania dismissed a similar challenge to Obama’s citizenship. Part of the criticism against that lawsuit was that:

Berg has tried to pretend that his lack of “standing” is a technicality. On the contrary, in federal courts standing is a threshold jurisdictional issue. State courts have broad “general” jurisdiction. Federal courts are courts of limited jurisdiction. I explained to Berg how he could file a meritorious lawsuit in state court but he was frantic.

That’s a true statement. Gilmartin v. Abastillas, 869 P.2d 1346 at n.4 (Hawaii App. 1994):

We note, however, that most of these cases arise in the federal system, where courts have limited, rather than general, jurisdiction. That is, unlike most state courts, which are courts of general jurisdiction and presumed to have jurisdiction over a particular controversy unless a contrary showing is made, federal courts “are empowered to hear only such cases as are within the judicial power of the United States, as defined in the Constitution, and have been entrusted to them by a jurisdictional grant by Congress.” C. Wright, Handbook of the Law of Federal Courts § 7, at 15 (2d ed. 1970).

But it misses the mark.

All the jurisdiction in the world is completely irrelevant if you don’t have standing to sue in the first place.

Franklin Covey Client Sales, Inc. v. Melvin, 2 P.3d 451 at n.3 (Utah App. 2000):

Melvin confuses the issues of subject matter jurisdiction and standing. Subject matter jurisdiction is the authority and competency of the court to decide the case, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350 (1969), while standing concerns whether “the plaintiff has a legally protectible and tangible interest at stake in the litigation.” Black's Law Dictionary 978 (6th ed.1991).

Beers v. Com. Unemployment Compensation Bd. of Review, 633 A.2d 1158 at n.6 (Pa. 1993):

Some of the parties to the appeals confuse the issue of standing with that of jurisdiction. Whether a party has standing to maintain an action is not a jurisdictional question. Jones Memorial Baptist Church v. Brackeen, 416 Pa. 599, 207 A.2d 861 (1965).

Multnomah County v. Talbot, 641 P.2d 617, 621 (Or. App. 1982) (“That question relates to standing, not jurisdiction; the dissenting opinion confuses those questions by tending to treat them as raising the same issue. They do not.”).

Subject-matter jurisdiction and standing each must be analyzed and determined separately. See Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); IndyMac Bank v. Miguel, 184 P.3d 821 (Hawai‘i App. 2008) (“The court's jurisdiction may not be invoked by a party who does not have standing to bring suit.”).

As a prerequisite to a court's exercise of jurisdiction over a party's claim, that party must demonstrate that it has standing to press that claim. Mottl v. Miyahira, 95 Hawai‘i 381, 388, 23 P.3d 716, 723 (2001). The issue of standing addresses whether plaintiff has the right to bring suit. Pele Defense Fund v. Puna Geothermal Venture, 77 Hawai‘i 64, 67, 881 P.2d 1210, 1213 (1994).

Kaho'ohanohano v. State, 162 P.3d 696 (Hawai‘I 2007):

The crucial inquiry with regard to standing is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his or her invocation of the court's jurisdiction and to justify exercise of the court's remedial powers on his or her behalf. In determining whether a plaintiff has standing, the court looks solely to whether the plaintiff is the proper plaintiff, without regard to the merits of the allegations.” Hawaii's Thousand Friends v. Anderson, 70 Haw. 276, 281, 768 P.2d 1293, 1298 (1989).

One of the elements of standing is whether the plaintiff can show an injury in fact, which brings everyone right back to the same silver bullet that’s killed all the other Obama citizenship lawsuits (and an earlier one against John McCain).

And the “direct and tangible” language used in Hawaii’s law restricting access to an individual’s birth certificate is the same language used by the courts when deciding the issue of standing. See, e.g., Lujan, 504 U.S. at 573-74 (1992).

So whether you’re trying to establish some type of injury in fact or claiming a legitimate interest in having access to a person’s birth certificate, the showing is similar. It must be personal, concrete and verifiable, not general and merely speculative.

The claims in federal and state courts have been essentially the same. It’s suspected that Obama isn’t a citizen, that his birth certificate has been altered, or that it contains some sinister revelation that could jeopardize his qualifications for the presidency, etc.

In Pennsylvania the claim was under the Natural Born Citizen clause of the U.S. Constitution. Lawsuits in Washington and Ohio were filed against the Secretary’s of State to fulfill their publicly mandated duties. In Hawaii an attempt is being made using state vital records statutes to force disclosure of the birth certificate itself.

But no matter where the forum is located or what vehicle the claim is brought under (whether federal constitutional provisions or state statutes), you can’t escape the issue of standing. Nor has anyone yet been able to produce substantive evidence in court beyond rumors and speculation fueled by Internet conspiracy theories that belong with the 9/11 and Area 51 groups.

That’s not enough to pry into someone’s birth certificate (which, under Hawaiian law is not a matter of public record to begin with), it’s not enough to show you’ve been harmed as a voter, and it’s certainly never going to be enough to invalidate a presidential election.

In an amusing example of the pot calling the kettle black, just as Philip Berg was criticized by Martin as having “trivialized” the issue of standing in the Pennsylvania case, Martin now characterizes the issue of standing in his own case as “nonsense”.

When an individual attempts to challenge government action in situations where the injury is less concrete, the courts require that a plaintiff show a kind of individualized injury that distinguishes them from the general population.

As for his rhetorical question asking how someone could seek access under state statutes and not have standing, the answer is straightforward: Assuming the statute even provides a mechanism for a private right of action in the first place, see Rees v. Carlisle, 153 P.3d 1131 (Hawaii 2007) (“As the declaratory judgment statute makes clear, there must be some ‘right’ at issue in order for the court to issue relief.”); also, Pono v. Molokai Ranch, Ltd., 2008 WL 4639719 (Hawaii App. October 21, 2008) (not all statutes create a private right of action to enforce their provisions), an individual can try to compel disclosure of a birth certificate – but not under these particular circumstances.

It’s not at all unusual for the courts to find that individuals lack standing to challenge government action or inaction when relying on specific statutes for their claims. Hein v. Freedom From Religion Foundation, Inc., 127 S.Ct. 2553 (2007); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Allen v. Wright, 468 U.S. 737 (1984); Flast v. Cohen, 392 U.S. 83 (1968).

And, as noted above, whatever constitutional basis there may be for having access to these records, members of the media (along with self-described experts, investigative writers, researchers and Internet powerhouses) have no greater right of access than anyone else. Branzburg v. Hayes, 408 U.S. 665, 684-85 (1972); ACLU v. State of Miss., 911 F.2d 1066 (5th Cir. 1990) (where the state has a legitimate interest in not making information available to general public, press has no special right of access to it).

Insofar as the Plaintiff claims to have a broad common law right of access, the legislature has chosen to restrict that right. Fujioka v. Kam, 514 P.2d 568, 570 (Hawaii 1973) (there is no doubt that the legislature has the power to change or entirely abrogate common law principles and rules); In re Water Use Permit Applications, 9 P.3d 409 (Hawaii 2000) (legislature may modify or abrogate the common law by statute).

The fact that the document is mischaracterized by the Plaintiff as a public record (under Hawaii law it’s not a public record) doesn’t change the analysis in his favor. Whatever presumption may exist for the open disclosure and inspection of other records, the legislature has erased it in this case and limited the categories of individuals who can have access to Hawaiian birth certificates.

The fact that subparagraph (9) is a catch-all provision doesn’t automatically confer standing on just anyone. That’s still a threshold issue.

If a person’s “direct & tangible interest” is to ultimately challenge or verify Obama’s citizenship status, then the suit is barred under the long line of precedents that have denied such challenges by individual voters in the past. Even if it weren’t, a plaintiff would still need more than speculation, Internet-fueled rumors, and rank hearsay to establish a legitimate right of access.

The complaint and memorandum are replete with questions of “what is Obama hiding . . .” and “why won’t he release his birth certificate . . .” But that burden of proof is on the plaintiff to come forward and make a showing with hard facts or verifiable evidence as a preliminary matter before prying into what is otherwise off-limits. Raising tantalizing questions or speculating about ulterior motives alone isn’t enough (and demonstrates a fundamental flaw in the Plaintiff’s argument).

The fact that a topic has become controversial or the subject of intense national speculation is insufficient as a matter of law to allow public access to an individual’s private records. Application of Air Terminal Services, Inc., 393 P.2d 60 (Hawaii 1964) (where governmental action is involved, declaratory judgment should not be granted unless the need for relief is clear, not remote or speculative).

Subparagraph (9) doesn’t confer automatic standing on anyone and it doesn’t allow fishing expeditions into a person’s vital records. If hard evidence does exist, it needs to be hauled into court. Don’t blog about it; don’t rant & rave about it on the Internet & radio; make sure it’s front & center before the judge.

Just as the petitioners in the case of In re Estate of Campbell, 106 P.3d 1096 (Hawaii 2005) tried to apply a broad interpretation to the meaning of the phrase “interested person” and failed, this case attempts to apply a similar interpretation to the phrase “direct and tangible interest” by claiming to protect the nation’s interest in the validity of presidential elections. It fails as well.

“If, through the political process, Congress determines that citizens, voters, or party members should police the Constitution's eligibility requirements for the Presidency, then it is free to pass laws conferring standing on individuals like Plaintiff. Until that time, voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring.” Berg v. Obama, 574 F.Supp.2d 509, 521 (E.D. Pa. 2008).

Whether you’re challenging a candidate’s citizenship directly in federal court or trying to justify your reasons for needing access to their private records in state court, the issues are inextricably intertwined and the outcome is fatal in both.

Hollander v. McCain, 566 F.Supp.2d 63 (D. N.H. 2008):

Based on these principles, the Supreme Court has “consistently held that a plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy.” Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130.

The Court went on to hold “that standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.” Id. at 229, 94 S.Ct. 2925.

Schlesinger makes clear, then, that Hollander does not have standing based on the harm he would suffer should McCain be elected President despite his alleged lack of eligibility under Art. II, § 1, cl. 4. That harm, “standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance.” 418 U.S. at 217, 94 S.Ct. 2925; see also Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937) (ruling that citizen lacked standing to challenge appointment of Hugo Black to the Court under the Ineligibility Clause based on his membership in Congress when it enacted a new judicial pension plan).

IndyMac Bank v. Miguel, 184 P.3d 821 (Hawai‘i App.,2008):

Standing is the threshold requirement borne by the party bringing suit to allege such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In other words, standing is that aspect of justiciability focusing on the party seeking a forum rather than on the issues he wants adjudicated. Life of the Land v. Land Use Comm'n of State of Hawaii, 63 Haw. 166, 172, 623 P.2d 431, 438 (1981). Absent a demonstration that a plaintiff has such a sufficient personal stake in the dispute, a court lacks jurisdiction and cannot exercise its remedial powers to resolve the matter. In re Application of Matson Navigation Co. v. Fed. Deposit Ins. Corp., 81 Hawai‘i 270, 275, 916 P.2d 680, 685 (1996).

A defect in standing could preclude this court from reaching Appellants' merit-based challenges because standing is concerned with whether the parties have the right to bring suit. Pele Def. Fund v. Puna Geothermal Venture, 77 Hawai‘i 64, 67, 881 P.2d 1210, 1213 (1994)

To assess whether standing exists, the so called “injury in fact” test is employed. Bush v. Watson, 81 Hawai‘i 474, 479, 918 P.2d 1130, 1135 (1996). Under this three-prong test, standing arises where “(1) the plaintiff has suffered an actual or threatened injury as a result of the defendant's wrongful conduct, (2) the injury is fairly traceable to the defendant's actions, and (3) a favorable decision would likely provide relief for a plaintiff's injury.” Id.

At best, Martin is airing a political and intellectual grievance against Obama for failing to release his birth certificate to the public. His claims amount to little more than conjecture based on abstract suspicions, then carried to grand extremes. It reads like a special edition of “The National Enquirer” with legal citations thrown in for good measure.

And to the extent his claims are substantiated, they fail to distinquish his injury or need from those of the general electorate. Akau v. Olohana Corp., 65 Haw. 383, 388-90, 652 P.2d 1130, 1134-35 (1982) (holding that a member of the public has standing to sue to enforce the rights of the public if he can show that he has suffered an injury in fact by demonstrating some injury to a recognized interest such as economic or aesthetic, and is himself among the injured and not merely airing a political or intellectual grievance).

Bremner v. City & County of Honolulu, 28 P.3d 350 (Hawai‘i App. 2001):

The point of the first prong of the test is, that “the plaintiff must show a distinct and palpable injury to himself or herself. The injury must be distinct and palpable, as opposed to abstract, conjectural, or merely hypothetical.” Akinaka v. Disciplinary Board, 91 Hawai‘i 51, 55, 979 P.2d 1077, 1081 (1999)

Mottl v. Miyahira, 23 P.3d 716, 730-31 (Hawai‘i 2001):

In the absence of evidence in the record establishing what “specific” and “personal” interest has been affected, the plaintiffs' argument amounts to speculation. Their argument calls for assumptions or inferences that are not supported by the record or any case law that the plaintiffs cite.

Accordingly, the injury that the plaintiffs assert is abstract, conjectural, or merely hypothetical. Akinaka, 91 Hawai‘i at 55, 979 P.2d at 1081. The case of Citizens for Protection of North Kohala Coastline, 91 Hawai‘i at 100, 979 P.2d at 1126 does not abrogate the “injury in fact” standing requirement in actions for declaratory relief affecting a public interest, but merely mandates less demanding standards in assessing the plaintiffs' proof of an “injury in fact.”

Inasmuch as the plaintiffs have failed to demonstrate that they suffered an injury to a recognized interest, as opposed to “merely airing a political or intellectual grievance,” Akau, 65 Haw. at 390, 652 P.2d at 1135, we hold that the plaintiffs lacked standing to pursue the present action.


You won’t convince a judge to give you access to an individual’s restricted personal records by appealing to his curiosity with tabloid-styled insinuations, especially when they’re (loosely) wrapped in the guise of a request for declaratory judgment that stretches the doctrines of waiver and statutory interpretation beyond recognition while scuttling threshold concepts like standing and right of action.

If Obama’s birth certificate is forged or contains something explosive, then the effort to keep it secret is widespread. They have done it with conspiring officials at the Hawaii Department of Health, the Cook County, Illinois Bureau of Vital Statistics, the Illinois Secretary of State’s office, the Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois and many other government agencies.

5:11 PM  
Blogger Bob said...

Dear D.A. -- long-winded is no evidence of wisdom.

RE: Evidence of eligibility to serve as POTUS: Only a FOOL claims a Right of Privacy, and only MORONS vote for such a FOOL.

An IBD Editorial quoted another: "The Constitution, it has been said, is a document written by geniuses to design a government that can be run by idiots."

I guess we have another "Idiot-in-Chief."

4:54 PM  
Blogger QueMan said...

And the attacks continue!!!

Mr. Martin will do what the lame Democruds won't due to their corruption!

His research is flawless and his honor....keep that in mind!

So get over it!

6:20 PM  
Blogger npc said...

It does seem you sir have standing
as the court put it to remove the veil from Obama. I hope you can for all Americans. I also believe Bergs lawsuit will not fly in the end but I do believe he has done a great service in that he and you have got Americans asking questions about who Obama is and where he was born.

He is I believe a "cult" leader in reality who has deceived many into believing he will change America. Most people think the change we be for good but I believe it will be for evil.

If Obama can be exposed for the "angel of light" he claims to be
people will begin to see him in a different "light" as a deciever.

9:17 PM  
Blogger Devil's Advocate said...

"Long-winded is no evidence of wisdom."

Very true.

The complaint & memorandum in this case are over 25 pages long, more than twice the length of my comments.

If I'm long-winded, he's damn near out of breath.

I'll leave it to the court to determine the "wisdom" of his claims, but they won't get anywhere near that much analysis by the judge and, in all likelihood, the case will be dismissed in short order.

12:30 AM  
Blogger Stan said...

devil's advocate:

Very impressive; thanks for the detail. A couple of questions:

(1) So who, in your opinion, COULD show 'injury' and/or 'standing' in this matter? A former opponent of Obama's for the US Senate? Or is the only party that could get his original bc released the House of Reps?

(2) I have read on one of these 'Obama's bc' threads a statement by a retired 'Homeland security' person seemingly conversant with Hawaiian law and procedures along these lines that a Certification of Live Birth - as opposed to a Certificate of Live Birth - could be issued to someone who had in fact not been born in Hawaii. Do you know anything about this factor? And if so, would you care to comment on it?

And also perhaps comment on why you think, since this became such an issue, that neither Obama nor his camp chose to clarify it from the start, and let the original, vault copy of his bc be released, as the McCain camp did his? And save all the bad-blood muttering on the internet??

10:28 AM  

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