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Hawai’i Supreme Court petition

October 21, 2008

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

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18 Comments
  1. Laura permalink

    go get em andy – If you’re speculations can be backed by fact, then you are NOT alone!!!
    There are many of us “sane” Americans that see what’s going on – PLEASE expose the truth and what is absolute truth!!!

  2. Laura permalink

    What time today can we expect to hear the news you found in Hawaii? And where?

  3. PICA and ELITE…..tat wus the type size of a typewriter in typing a birth certificate in the year 1961.

    There where no computers… duh!

    Wait until the world learns what brand typewriter the State of Hawaii used in the year of 1961 and they will see tat whether it wus a Remington Rand , IBM, Smith Corona, Royal, Underwood or Hermes from the type tat is on the birth certificate….

    Everyone may jus say it came from a Olympia Optima Trimph Adler Olivite Comfort Arabic English Splendid Gx6750 Gx8250 Dubai machine…..of today………dang! even a Dell.

  4. FullJoy permalink

    When will you publish those articles, Andy? I’m looking forward to them…I know you’ve got bigger fish to fry, though.

  5. Johnny Peepers, why on earth would I want my congresspeople and senators to pass a constitutional amendment allowing non-native Americans to run for president?

    If I wanted a non-native person to be president, I would leave America and sit under the rules and laws of a foreign nation.

    What kind of change are you hoping for anyway? You want an anti-American, Jew and Whites hater to rule you? You want someone to rule over you who can’t even put his hand on his heart during the National Anthem? You want someone who removes his flag pin and calls for global citizenship? You want someone who can’t even have the decency to produce his birth certificate?

    If you are that anti-American, that you want a foreigner to be able to run as our president, then perhaps YOU should leave America. Then, you can have a foreigner rule over you.

  6. Wow. Ignorance runs rampant around here. Here’s a question for all of you Real Americans: what defines a Real American?

  7. Dee permalink

    Just a thought… Seems to me that there’s probably quite a few of the maternity ward/floor nurses still alive and living in HI who would have worked at both those hospitals in 1961. Back then, it was still very unusual to see a white female giving birth to a mixed race baby. I would think that would have been a very memorable event for the staff just because of the gossip factor. You might try to track down some of the staff of the hospitals while you’re in the area… Of course, if it never happened, they should remember that too (by lack of gossip factor).

  8. TMGF permalink

    I would highly suggest that people read the 14th amendment for themselves to see who qualifies as a “native-born American.”

    Here’s a link: http://www4.law.cornell.edu/uscode/html/uscode08/usc_sec_08_00001401—-000-.html

    I’ll quote the pertinent part:

    “(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person.”

    His mother was an American…that makes him a native-born American.

    BTW…John McCain was born in Panama, wasn’t he?

  9. In 1961 to be a Natural Born US Citizen, the law read that a person born to a mother who had not been living in the USofA for 4 years after her 16th birthday WAS NOT CONSIDERED A NATURAL BORN CITIZEN. Obama’s mother was 18 when he was born. So he might be a US Citizen but not Natural Born, if he was born in Hawaii. If he was born in Kenya, his COLB would have to state that. He might then have dual citizenship.

    HOWEVER it has been documented by others that to attend school in Jakarta, Indonesia, a child had to be an Indonesian citizen, and since it has been documented elsewhere that Lolo Soetoro adopted Barry Dunham and that Barry Dunham Soetoro attended schools in Jakarta, his Hawaiian COLB or Birth Certificate would be SEALED due to the adoption. IF Barry Soetoro was a dual citizen of the USofA, he LOST US Citizenship 1- when he was adopted by Lolo Soetoro and 2- when he used his Indonesian Birth Certificate in 1981 to go to Pakistan, a Country under Martial Law where it was forbidden for US Citizens to enter. In 1981, Barry Soetoro was considered an ADULT and he chose his Indonesian citizenship over his US citizenship by obtaining the Passport from Indonesia. Where is that Passport and which name was used? He would have had to produce a Birth Certificate and would have had to use a non-US birth certificate to get a Passport from a Country which allowed travel to Pakistan in 1981. It can be surmised that the name on the Passport was taken from the non-US birth certificate and that the name used was Barry Soetoro.

    The US Constitutional Law from 1961 is important. Besides that, there is the Passport to travel to Indonesia and Pakistan used in 1981 and it was NOT a US Passport.

    John McCain was born to TWO US Citizens on a Naval Base in Panama when Panama was under the control of the USofA . . . not the same situation.

    So it really doesn’t matter about his being born in Kenya as his Kenyan Grandmother and other relative have stated. Barry Obama’s Indonesian Birth Certificate and Passport verify his citizenship status.

  10. What a bunch of bull the docket does not exist!

  11. Carole Dillon permalink

    His Indonesian passport is of interest. Once you obtain a passport from your country-is there any circumstance under which you can void that passport and get another passport from another country? A friend of mine had a passport from Yugoslavia/Slovakia (now), and desired a U.S. passport because he is a legalized citizen of the U.S. He was refused. If you are unable to void one passport and be granted a passport from another country, then it would be clear his citizenship is in Indonesia.

  12. Robyn permalink

    LDR, not all District Courts participate in the national online public access services.

    http://pacer.psc.uscourts.gov/psco/cgi-bin/miss-court.pl

  13. Deborah permalink

    This is SO interesting. If he’s a “naturalized citizen” as would appear to be the case, he can NOT become our president…otherwise, Arnold could run and he can’t!! I agree about the Indonesian citizenship. IF he was issued an Indonesian passport, he must have been a citizen and he must have used his adopted name of Barry Soetoro. I can only conclude that when he “decided” to be an American citizen, he just went back to “using” hi Obama name. There MUST be some record of the request for a name change! When my sons decided to take their step-fathers last name, we had to publish the request in the paper for at least 3 submissions. We had to provide their original birth certificate and then we had to get them changed to show the “new” name. They now say that they were corrected. As far as I know…all records are PUBLIC and you can’t just “decide” not to let them out. I think it was called the privacy act or something like that? If he’s on the up & up…why not just release the documents and get it over with. I can only conclude he’s covering up the truth.

  14. Do you even have standing for this?

  15. Standing? I would think that any American recognizing or capbale of proving a violation of our contitutional law should have standing. I understand Obama’s desire to escape using a technical legal move like standing, but if it succeeds, how pathetic will he look?

  16. PRO permalink

    Transparency, people! Why can’t Obama be transparent in ANY of his deals? Why is America so indifferent? Is this the type of President we want or deserve? There are SO many issues with inconsistencies in most of his dealings, from his very beginnings in life, with unconventional situations with his estranged parents and step-father, to questionable people he associated with, with people who helped him get into government, and in the way he made his money, or the record-breaking millions and millions of dollars “collected” and spent in campaigning, etc., etc.

    Nothing is clear; not much is known about him or even sounds logical or believable. We only know the story we are told. Not even a Hollywood movie could be more fantastic. Wasn’t he so proud when he stated that he became a community organizer rather than start a regular pay job as an attorney after graduating from… Harvard!?! He did graduate, didn’t he? (Another mystery?) What serious attorney turns down an opportunity to work in the profession he/she chose after the long wait and sacrifice of studying for it? NOBODY! Especially, as Michelle Obama said in her Democratic convention speech: he turned down, actually turned down Wall Street law firms. He should have known you can do far more good in choosing voluntary work WHILE working in these companies and perhaps get yours involved in your “cause,” than simply going full-time as a “community organizer.” Who is he kidding? Apparently everybody!

    I’d like to know how he made his money so fast and did it during the “Bush-era,” which he calls the worst in American history (or recent history). Bush was NOT too bad for him, wasn’t it? He should be grateful to Bush: Obama became a MILLIONAIRE in this same period of time he so bitterly condemns. And what could be more appalling? At a time of such dire economical situation in America, he spends immoral amounts of money to shove himself down our throats! You cannot turn on the radio, or TV, or access any Internet website without being constantly bombarded with very expensive ads for Obama. But NOBODY questions that. No media pundit exposes this fact nor demands an explanation of why so much money, otherwise so desperately needed for charity, be spent just to showcase the Obama idol. Makes you wonder, ha? Well, only straight-thinkers would question the above. I am one of them.

  17. Hey Andy, I hope you succeed in revealing Obama’s birth crtificate.

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  1. Obama Files Motion To Dismiss Instead Of Producing The Documents | ChooseTheHero.com

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