Hawai’i Supreme Court petition

ANDY MARTIN
Post Office Box 1851
New York, NY 10150-1851
Toll-free tel. (866) 70-6-2639
Toll-free fax (866) 707-2639

Temporary Hawai’i contact:
Cell phone (917) 664-9329

Petitioner Pro Se

IN THE

SUPREME COURT OF HAWAI’I

SUPREME COURT DOCKET NUMBER: 29414

ANDY MARTIN,

Petitioner,

HON. LINDA LINGLE, in her
official capacity as Governor;
DR. CHIYOME FUKINO, in her
official capacity as Director
of the Department of Health,
HON. BERT AYABE, in his official
capacity as Circuit Judge,

Respondents.

___________________________________

EMERGENCY PETITION FOR WRIT OF MANDAMUS

INTRODUCTION AND PRELIMINARY STATEMENT

The question of the authenticity and public availability of the birth certificate of Senator Barack Obama (hereinafter “Obama”) has become a source of increasing embarrassment for Hawai’i Government.
Although Obama has purportedly posted a copy of his birth certificate on his own web site, and others claim to have posted other versions, Obama refuses to allow public access to the official records of the State of Hawaii.
Petitioner is an author and columnist who came to Hawai’i to do research on Obama’s years in Hawai’i. After arriving in Honolulu, Petitioner decided he needed a copy of the original birth certificate, as well as any official files relating to the issuance of said certificate.
The Executive Branch Department of Health has repeatedly and egregiously mischaracterized the Hawai’i statute governing access to birth certificates, and did so again on October 17th in a statement to the Honolulu Advertiser.
Petitioner applies to this Court for an appropriate writ, and offers two separate avenues of potential relief for the Court to consider.

I.
JURISDICTION

This court has jurisdiction of this Petition pursuant to HRS § 602-5 (a)(3).

II.
FACTUAL ALLEGATIONS

1. The Petitioner
Petitioner Andy Martin has been writing about Obama for over four years. Petitioner is the author of the best selling book “Obama: The Man Behind The Mask.”
Petitioner publishes an Internet newspaper, http://ContrarianCommentary.com, as well as related blogs, http://Contrariancommentary.wordpress.com and http://ContrarianCommentary.blogspot.com.
Although Petitioner is not a practicing attorney, he is a respected public interest and consumer rights litigator, see http://www.AndyMartin.com. He holds a Juris Doctor degree from the University of Illinois College of Law.
For example, in 2003 the Pennsylvania Supreme Court granted Petitioner special leave of court to represent a U.S. Marine in a landmark case arising under the Soldiers and Sailors Civil Relief Act of 1940, see http://www.firstrespondersonline.us/director.htm (see attached).
Petitioner is also highly controversial. His corruption-fighting efforts in the Illinois courts and federal courts have provoked intense hostility and counter-reactions from judges who were the targets of his exposures see http://www.AndyMartin.com. These judges have sought to vilify and demonize petitioner, and Obama has sought to use these corrupt techniques to divert attention from Obama’s own questionable personal history.
Petitioner is undaunted.
In Hawai’i, petitioner is accompanied by a network television camera crew. Thus the bona fide news value of his current litigation activity is not subject to question.
2. The Respondents
A. Respondent Linda Lingle is named in her official capacity as Governor and Chief Executive of the Executive Branch of Hawai’i government.
B. Respondent Dr. Chiyome Fukino is joined in her official capacity as Director of the Hawai’i Department of Health.
C. The Hon. Bert Ayabe is named in his official capacity as a Circuit Judge of the First Circuit. As will be shown below, Judge Ayabe’s joinder in this petition does not necessarily involve any criticism of the judge and reflects the absence of any local rules to govern the judge’s authority.
3. The birth certificate (certificate of live birth)
A. For the convenience of this court, Petitioner has submitted a copy of the Circuit Court proceedings as a separate Appendix. Those documents are incorporated by reference in this petition.
B. In summary, Petitioner applied for and was denied a copy of Obama’s birth certificate. Petitioner then commenced a proceeding in the First Circuit on October 17, 2008 while still physically present in Honolulu.
C. Petitioner notified Judge Ayabe of Petitioner’s limited availability in Hawaii, and requested or suggested an emergency hearing.
D. Judge Ayabe responded promptly through his judicial assistant with a hearing date after the 2008 election on November 7th. Petitioner was also notified that in order to exercise his rights and pursue his petition he would have to return from Chicago to Honolulu, as there was no provision for telephone hearings. (It was not clear whether the judge viewed the absence of telephone rules as a preclusion of telephone hearings, or was imposing his own individual rules of practice).
E. Petitioner was required to file his lawsuit in Hawai’i. No other court system has jurisdiction of local Hawai’i officials. Petitioner should be as welcome in the Hawai’i court system as a Hawai’i citizen would be on the mainland. There are no artificial boundaries or distinctions under the Privileges and Immunities Clause of the U. S. Constitution. If Petitioner must be present in Hawai’i in order to vindicate rights and remedies under the Hawai’i Constitution and statutes he will be precluded from doing so.
F. Hawai’i is a sophisticated international business center. It is simply impractical for parties to be physically present in the State as a precondition of access to Hawai’i government or the judicial system.
G. Rule 11 of the Probate Rules provides for “Telephone Conference Call Hearings.” On information and belief there is no parallel provision in the Civil Rules.
H. Petitioner remains present in Hawai’i through October 22nd and available for emergency hearings in person.
I. This Court can take its own judicial or official notice that numerous state and federal court systems provide for telephonic participation, see e.g. Florida Rules of Judicial Administration 2.530.

III.
RELIEF REQUESTED

This Court can deal with this petition by either one of two separate approaches.
First, the Court could decide that the Executive Branch’s misapplication and misinterpretation of the relevant statute (see Exhibit 1 to the Circuit Court Complaint) raises issues of sufficiently great public and national importance that the Court will entertain the issues presented as a matter of the exercise of this Court’s original jurisdiction. In that case the writ of mandamus, if granted, would issue directly to the executive branch and Judge Ayabe’s role would become moot and coram non judice.
Second, this Court could decide that the Circuit Court should conduct an expedited hearing, and do so either while Petitioner is still physically present in Hawai’i or while Petitioner is allowed to participate on the telephone, directing that the Circuit Judge either schedule a prompt hearing or ask that the case be reassigned to a judge who can conduct a hearing before the 2008 election. In that case the writ, if granted, would issue to the Circuit Judge.
The approach which this Court prefers to adopt is entirely at the discretion of the tribunal.

IV.
BASIS FOR GRANTING RELIEF

A. The constitutional issue
In Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, (1976) the Supreme Court stated “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” The authenticity and contents of a presidential candidate’s birth certificate is at the apex of First Amendment concerns, Monitor Patriot v. Roy, 401 U.S. 265, 91 S.Ct. 621 (1971)(“[I]t can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.”)
To say that a proceeding will not be convened until after the election is to create the very type of unconstitutional delay precluded by Elrod, and creates a justifiable public suspicion of a conspiracy and cover-up by Hawai’i officials.
Elrod does not appear to have been cited by any Hawai’i court but has been cited numerous times by federal judges in Honolulu, see e.g. Rapp v. Disciplinary Board, 916 F. Supp. 1525, 1539 (D. Hawai’i 1996); Walsh v. Honolulu, 423 F.Supp.2d 1094, 1108 (D. Hawai’i 2006); Swanson v. University, 269 F. Supp. 1252, 1260 (D. Hawai’i 2003); Legal Aid v. Legal Services, 961 F. Supp. 1402, 1417 (D. Hawai’i 1997). Although Petitioner filed his Circuit Court lawsuit under the Hawai’i Constitution and not the First Amendment, this Court has previously interpreted those rights to be coextensive.
B. The procedural issue
There is an anomaly under Hawai’i procedure where probate rules provide for telephone hearings but civil rules do not. Perhaps this gap motivated the circuit judge to deny a hearing, or to adhere to such procedures as a general practice.
Certainly in the modern commercial age, with Hawai’i at the crossroads of international business, antiquated notions of physical presence as a precondition for access to Hawai’i government should be reconsidered. The Privileges and Immunities Clause of the U.S. Constitution would also appear to lean in favor of allowing out-of-state litigants from the mainland to be heard by telephone.
C. The substantive issue
a. The statute
HRS § 338-18 (b) limits disclosure of records to persons having “a direct and tangible interest in the record.” The statute then provides thirteen (13) examples as illustrative, but not exclusive, including number (9): “A person whose right to inspect or obtain a certified copy of the record is established by an order of a court of competent jurisdiction.”
The Respondents have steadfastly misinterpreted the “direct and tangible interest” standard into one requiring a direct and tangible “relationship” between the party and the record. Thus there is a serious abuse of discretion and statutory misinterpretation by the executive branch. The Respondents have persisted in this misinterpretation despite notice that their interpretation of the statute was a misinterpretation, and will no doubt proffer the same misinterpretation to this Court as their initial response to this petition.
Researchers, scholars, writers and news media—and Petitioner has attributes of all of the foregoing—have a “tangible interest” in many public citizens without any “relationship” to those persons. Petitioner is sensitive to privacy issues and identity theft issues. But no one is likely to try to hold themselves out to be “Barack Obama” using a birth certificate issued by Respondents.
Nevertheless, the very vehemence with which Hawai’i officials have misconstrued a state statue, and the manner in which Obama has attempted to manipulate and control access to his personal records (see infra), raise legitimate suspicions in the mind of the public.
b. The waiver and admission issues
Obama claims that he has posted a conformed copy of his birth certificate on a web site. It is impossible to say whether this assertion is true, because Petitioner has no official copy to compare to the Internet version. Obama has not posted any of the source information or supporting data. If Obama has posted a version of his birth certificate, it would appear he has waived any privacy issues and the statutory restrictions on issuance of a copy to Petitioner no longer apply.
It is indeed a very peculiar state as now exists where Obama claims he has released his birth certificate or at least his latest version of the document, and yet claims that no one should be able to obtain an official copy of the same document from the State of Hawai’i or review the source information for the certificate. Waiver would appear to be applicable and render nugatory any privacy concerns.
Obama has claimed he was born in a Honolulu hospital, but there is no verifiable evidence to sustain that claim. An examination of birth records is thus essential to resolve the lingering doubts.
As judges, certainly the members of this Court are aware that punctilious concern for accuracy would mandate that any counsel preparing a case in which the birth certificate was an issue, must obtain a certified copy and not a copy grabbed off an Internet web site. As an author and columnist, Petitioner adheres to the same high standards of accuracy in the search for original truth.
The fact that Obama has in fact posted his birth certificate on the Internet is a confirmation that he believes that issue is a topic of legitimate public interest.
D. The common law writ of mandamus
Petitioner has reviewed this Court’s jurisprudence concerning and construing the common law writ of mandamus. Petitioner submits that the extraordinary facts of this Petition provide a basis for extraordinary and emergency action. As the attached docket sheet from the Pennsylvania Supreme Court attests, Petitioner is experienced in preparing, filing and obtaining relief through extraordinary writs on an emergency basis.
CONCLUSION
Most respectfully, Petitioner asks this Court to take emergency action and to grant one of the alternative forms of relief outlined in this petition.
DATED: October 20, 2008
Honolulu, HI
Respectfully submitted,
ANDY MARTIN
Post Office Box 1851
New York, NY 10150-1851
Toll-free tel. (866) 70-6-2639
Toll-free fax (866) 707-2639
Temporary Hawai’i contact:
Cell phone (917) 664-9329
Petitioner Pro Se