Thursday, November 27, 2008

Andy Martin asks Hawai'i court to reconsider flawed Obama ruling

I just received this legal paper from philo-Semite Andy Martin.


(Declaratory Judgment)

ANDY MARTIN, Plaintiff,


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



Preliminary Statement

The Court managed to take what is at its core a simple and straightforward case seeking review of denial of access to a Hawai'i record, and to add layers of confusion and complexity that were totally unwarranted by the record made in open court on November 18th. For the reasons that follow, Plaintiff moves the Court to reconsider, vacate and rehear the matters decided on November 19th using the correct procedures and standards of law.

Plaintiff initially thought that he would appeal the order to the Intermediate Court of Appeals, but it would be a disservice to that Court to appeal such a mangled and needlessly confused record from the trial forum. Thus, the Rule 59 motion (see below) stays any appeal until a decision on this motion.

1. Procedural basis for reconsideration

Plaintiff is not aware if a judgment has been entered since he has not been served with any such document. Prior to entry of a judgment a Court has plenary power to review and reconsider an order. This motion is also filed under H.R.Civ.P. 59.

2. The Court applied an imaginary standard
to plaintiff's motion

Plaintiff's motion is attached as exhibit A. Plaintiff sought access to a birth certificate after denial by the defendants. In no place did the Plaintiff ever mention the word "injunction" and nothing in Plaintiff's motion constituted a request for a temporary injunction. A temporary injunction is a remedy usually entered to preserve the status quo. Plaintiff was not seeking the preservation of any status quo. He was seeking review of denial of access to a historic public record, and asked the Court to expedite the matter based on both a lack of a factual dispute and intense national interest in the document. Neither of these issues converted a review proceeding into an injunction matter.
Despite the lack of any pleading seeking injunctive relief, the Court mischaracterized plaintiff's motion for review of denial of access as an "injunction" and then applied the heightened standard applicable to injunctive proceedings as a pretext to dismiss the action. This was clear error and a serious abuse of discretion.
For the court to create an imaginary request for an injunction and then deny that imaginary request deprived Plaintiff of due process of law.
Thus, the entirety of the Court's order is void for want of due process and must be reheard under a correct standard of review. The Court's behavior clearly "exceeded the bounds of reason [and] disregard rules or principles of law or practice to the substantial detriment of a party litigant." Amfac v. Waikiki Beachcomber, 74 Haw. 85, 839 P.2d. 10, 26 (Haw. 1992).

3. The Court decided a nonexistent standing issue

Plaintiff sought access to a historic document on two grounds: (i) a Health statute vesting as court with authority to direct release, and (ii) the Hawai'i UIPA. Both the statute, which vests the court with discretion to hear requests for access, and the UIPA, provide for review by this Court. There is thus a statutory grant of standing to seek review of a denial of access.
There is no "standing" issue in this lawsuit. Plaintiff does not need to show "injury" to seek access to a historic Hawai'i record. The AG's claim was complete nonsense. Why the Attorney General sought to garbage-up the record with bogus standing claims is a question that should concern the court. Why the Court threw in standing as an afterthought as a basis for dismissal, when there is no such issue, is bizarre.

4. Service of process was timely made

This lawsuit was filed in mid-October. Plaintiff sought to expedite the proceedings because of the intense national interest. He lives in Chicago. He is based in New York, some 8,000 miles from the forum. The Court entered an order to show cause why the relief sought should not be granted. Defendants claimed they had not been served (which has no bearing on an order to show cause, which they admitted had been served; at hearing they admitted they had also been served with the original pleadings on October 17th). After defendants objected and demanded service a second time, Plaintiff served the defendants and filed his proof of service on November 19th. Thus, there was not the remotest basis for dismissal on the basis of failure to serve the defendants.
The Court's apparent attempt to impose thirty days as a basis for dismissal is an unreasonable period to impose on Plaintiff to serve defendants a second time when he is an out of state litigant. Plaintiff was well within the applicable time limits when he served the defendants and no reasonable person could argue to the contrary.

5. The court ignored the state of the record

Plaintiff was seeking review of a denial of access to a historic public record. As Plaintiff set forth, there was a serious waiver issue, since the parties themselves had discussed the document openly, and the "document" has falsely been portrayed as already being disclosed. The Court ignored the waiver issue. Based on the lack of any response by the defendants, waiver mandated release of the document.


At a certain point, the comulatative errors in this proceeding raise an inference of harassment of an out-of-state litigant. Under the Privileges and Immunities Clause, a non-Hawai'i resident should obtain the same due process that a native or resident receives. Hawai'i is not a private club that is maintained for the benefit of insiders.

Plaintiff came before the Court in good faith seeking access to a historic document. There is not a shred of evidence in the record to defeat his claim. The court's constant mischaracterization of his claims and misapplication of the rules constitute a breach of judicial decorum.
The dismissal should be vacated and the matter should be heard before a judge who will faithfully and fairly apply the law. If this Court honestly disagrees with Plaintiff's arguments, it should simply say so and send a clean record to the ICA, and not try to create cobwebs to conceal legerdemain and prevarication based on an attempt to evade the obviously applicable facts and principles of law.

1 comment:

Anonymous said...

Come on Andy, go at this a different way. It's a law you want the courts to overrule. They won't show you a document that is forbidden for them to show you. Obama would come after them full force. The republican governor Lingle would be toast.

You are wasting your time.Go after the electoral college voters in Hawaii. Without a qualified candidate they do not have votes. We voted for the electors based on a candidate we deemed to be vetted properly. He was not and he refuses to show evidence so the electors have nothing to vote on.