Andy Martin calls State of Hawai’i a possible “gangster republic”
Martin says the Hawai’i courts are obstructing access to historical archives concerning President Barack Obama. In a sharply worded petition to the Hawai’i Supreme Court, to be docketed July 9th, Martin recites a history of abuse, harassment and procrastination by Hawai’i judges, clerks and the state’s Attorney General. “There is no explanation for the behavior of Hawai’i officials,” Martin says, “Unless someone has something to hide.”
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Petitioner Pro Se
SUPREME COURT OF HAWAI’I
SUPREME COURT DOCKET NUMBER:
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,
APPLICATION FOR WRIT OF CERTIORARI
INTRODUCTION AND PRELIMINARY STATEMENT
The question of the authenticity and public availability of the original, typewritten 1961 birth certificate of President Barack Obama (hereinafter “Obama”) has become a source of increasing embarrassment for the Hawai’i state government and especially for the Hawai’i judicial system.
Although Obama purportedly posted a “copy” of his birth certificate on his own web site, and others claim to have posted other versions, those documents were not a copy of the original typewritten document but merely a computer-generated “certificate of live birth.” To date Obama has refused 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 research Obama’s years in this state. 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 Hawai’i Department of Health has repeatedly and egregiously mischaracterized the Hawai’i statute governing access to birth certificates.
Petitioner filed a lawsuit in the circuit court, where the treatment he received from the court was appallingly mean-spirited and unprofessional. Petitioner then appealed to the Intermediate Court of Appeals (“ICA”).
Waiting in ambush at every stage of the proceedings was the Hawai’i Attorney General. That office has sought to use and abuse the judicial system to delay and prevent review of the litigation involving access to Obama’s birth certificate.
It should not literally take a “supreme court case” to obtain access to an archival document of American history such as a president’s birth certificate.
After full briefing by the petitioner, the ICA dismissed the appeal on the basis that the trial court had failed to enter a final judgment. Thirty years after the U. S. Supreme Court eliminated such jurisdictional gymnastics in federal courts, the Hawai’i court system continues to use dirty tricks and unsavory procedures to delay and deny appellate review. For shame.
This petition raises the question of whether a prior decision of this Court should be brought into conformity with the federal standard, and whether the Attorney General, as a constitutional officer of this Court, should be allowed to use dirty tricks and ambush tactics to create confusion and chaos for appellate litigants and for the appellate judiciary as well.
This is the second time the underlying “birth certificate” issue has reached this Court. Hopefully, there will not be a need for a third visit.
This court has jurisdiction of this Petition pursuant to HRS § 602-5 and HRAP 40.1.
STATEMENT OF THE ISSUE PRESENTED
Should this Court reconsider Jenkins v. Cades Schutte, 76 Haw. 115, 869 P.2d 1334 (1994) and adopt the federal “waiver” standard created in Bankers Trust v. Mallis, 435 U.S. 381, 98 S. Ct. 1117 (1978)?
The Circuit Judge dismissed this lawsuit with prejudice. Petitioner then filed a timely motion for reconsideration. The judge then denied that motion and Petitioner filed a timely notice of appeal. Petitioner filed his administrative paperwork in the ICA and filed his brief on the merits with that Court.
On June 9th, the ICA dismissed the appeal on the basis of Jenkins, saying that Petitioner’s appeal was premature. Petitioner did not learn of this action until June 25th because the Clerk’s office disregarded HRAP 35 (d) and failed to fax a copy of the order to someone thousands of miles away. Therefore, Petitioner was prevented from filing a timely petition for reconsideration through no fault of his own.
On the same day that Petitioner learned of the ICA’s action (from one of his readers at ContrarianCommentary.com, not the Clerk’s office) Petitioner sent a sharply worded letter to Circuit Judge Ayabe.
In response, on June 26th Petitioner received a letter from the Attorney General dated June 26th, purporting to prepare a “final judgment.” A copy of the letter is attached hereto. On information and belief, as of this date (July 7, 2009) no judgment has yet been entered by Ayabe or the Clerk.
Petitioner is both asking the ICA to reinstate the appeal and asking this Court to grant a writ of certiorari.
STATEMENT OF THE CASE
It is painfully obvious that circuit judges and clerks are not entering “judgments” in the rote or mechanical manner contemplated by this Court in Jenkins. Six months after entry of a dispositional, appealable order, no judgment exists and, presumably, no right of appeal has yet been triggered.
The proposed “judgment” prepared by the Attorney General appears to have been drafted in bad faith. The proposed judgment appears to clearly violate Rule 54 (a), which states “A judgment shall not contain a recital of pleadings…”
Six months after a circuit judge entered a final, appealable order, Petitioner is being told he cannot yet appeal.
Rule 58 is being used to deny appeal, not to facilitate it.
What is strange is that Jenkins suggested “[Rule 58] was not designed as a trap…” But that is how Jenkins is being used.
In the course of litigation in Hawai’i courts, Petitioner has seen numerous instances where this Court follows federal procedure, see e.g. Harada v. Burns, 50 Haw. 528, 445 P.2d 376 (Haw. 1968), Kawamata Farms v. United, 86 Haw. 214, 948 P.2d. 1055 (1997). There are numerous similar ICA citations.
Apparently the only place where Hawai’i law departs from federal procedure is in the case of Rule 58. The Attorney General obviously uses Rule 58 as a “secret” weapon to harass opposing litigants.
The petitioner is not part of the court system. The Attorney General, circuit judge and circuit clerk are all part of the judicial machinery. Yet the Petitioner is being harassed and punished because these three officers of the court system have refused or failed to perform their duties. If this is not abuse and harassment, what is?
For over three decades federal courts have found no problem with Mallis. Jenkins, on the other hand, has proven a failure, when the judge, the clerk and the AG all fail to comply with Rule 58, and the AG and ICA then pop up, jack-in—the-box style, and demand that the petitioner start all over again. Can this nonsense really be in the interests of justice? Does this harassment and abuse of litigants really enhance the prestige of the Hawai’i courts? The answer is apodictic.
Through no fault of his own, Petitioner is being told he is subjected to endless delays in appealing because judicial officers and quasi-judicial officers are refusing and failing to perform their assigned and proper functions. The Civil Rules appear to contemplate that the Clerk enter a judgment, not a party.
Trial court procedure appears to reflect that the prevailing party prepare the order. Yet the AG, which prepared every prior order, suspiciously failed to prepare a judgment, subsequently using the “lack of a judgment” as a potential ambush and trap in the ICA. This is disgraceful behavior by a constitutional officer of the court. As the U. S. Supreme Court said long ago said regarding the Attorney General of the United States, “The [Hawai’i Attorney General] is the representative not of an ordinary party to a controversy, but of a sovereignty…he is not at liberty to strike foul ones.” Berger v. U.S., 295 U.S. 78, 88, 55 S. Ct. 629 (1935). See also State v. Maluia, 107 Haw. 20, 108 P.3rd 974, 982-983 (Haw. 2005)(Acoba, J, concurring); State v. Wong, 97 Haw. 512, 40 P.3rd 914, 929-930 (Haw. 2002).
Rather than being the “servant of the law” contemplated in Berger, the Attorney General has acted as an unscrupulous adversary who sought to use and abuse the judicial system to delay a meritorious appeal.
The record below reflects that Petitioner has treated the circuit judge with the utmost respect. That respect and professional courtesy has not been reciprocated. Now the AG has proposed a “judgment” that looks suspiciously prolix.
Is Hawai’i part of the United States? Or is it some gangster republic that manifests contempt for the United States of America? This Court should not have to become embroiled, over and over again, in supervising the release of a simple and obviously archival document of American history.
It is axiomatic that the birth certificate of an American president is a historic document that should be on display in the state archives, not the subject of guttersnipe litigation tactics by the Hawai’i Attorney General.
Unless someone has something to hide.
Most respectfully, but with a growing sense of exasperation and frustration, this Court is asked to (i) reconsider Jenkins and adopt the Mallis rule allowing a waiver of Rule 58, to avoid future legerdemain of the type documented in this record, and (ii) either assume jurisdiction of this appeal or direct the ICA to expeditiously hear Petitioner’s arguments.
July 8 2009
New York, NY
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