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(re-formatted)
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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