Martin v. Lingle: Andy Martin's Honolulu Legal Papers

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

Andy Martin's Obama Investigation in Hawaii

I just received the following press release from Andy Martin. Note the following sentence consistent with the hypothesis that Obama is a sociopath: "Places, people, experiences, the past are there to serve Obama, not the truth.":

FOR IMMEDIATE RELEASE:

"OPERATION ALOHA OBAMA" BEGINS TO YIELD THE TRUTH ABOUT BARACK OBAMA

THE COUNTDOWN TO THE REAL OBAMA BEGINS: A THREE-PART SERIES

(HONOLULU, HI)(October 19, 2008) You may have seen the delightfully goofy TV commercials in which former newscaster Bill Kurtis "finds the Internet" and misses the broader historical issues starting him in the face. We came to Hawai'i to find the real Barack Obama, and we think found him.

Over the next four days our conclusions will startle you, drive the New York Times crazy, and change the focus of the presidential campaign from "Who is Barack Obama" to "How did he get away with it for so long?"

At the end, my column on Wednesday the 22nd will be filled with sadness and pity, not anger. Obama's real story is a sad story, a story that remains to be written and rewritten.

When we landed in Honolulu the local dispute was over whether Obama is "Hawaiian enough." Hawai'i Governor Lingle had stated in Nevada that Obama's ties to Hawaii were tenuous. That produced a backlash from Obama megaphones. Congressman Neil Abercrombie quoted Michelle Obama as saying "You can't really understand Barack until you understand Hawai'i." http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=2008810180356

I agree with Michelle. Hawai'i is where you find the truths about Obama, especially the truths that Obama does not want you to find.

Obama uses Hawai'i the same way he uses everything else in his life. Places, people, experiences, the past are there to serve Obama, not the truth. Maybe he and Mr. Kurtis should get together. For myself, I am interested solely in the facts and the truth.

The hidden truths about Obama will be presented in three parts:

Monday, October 20th: Obama and Islam, Again

Tuesday, October 21st: Obama's family and what it tells us
(The Dog That Didn't Bark)

Wednesday, October 22nd: The Two Obamas: Obama's Secret Family

Obama is in some respects a metaphor for Hawai'i itself: insular, isolated, and detached. Honolulu is a city of dazzling modernity. But Hawai'i is also a place where native Hawai'ians can grow to adulthood without a working knowledge of English. There are contradictions galore in Hawai'i, and Obama is the crown jewel of contradiction and conundrums. But there are consequences to contradictions.

The last time I told the truth about Obama, he unleashed his attack dogs at the New York Times to smear me. We will be filing suit in a few days to expose the New York Times as an Obama handout, not an independent newspaper (see below). And when this series is complete, you can expect the Times and mainstream media ("MSM") to renew their attacks on me.

My background is clear: since I first went to Viet-Nam forty-one years ago, I have been breaking news and irritating powerful people, ending up on presidential enemies' lists and the like. But no one has ever successfully attacked my facts. Truth is my passion; accuracy is my overriding goal. I have an unblemished 40-year record spanning the rice paddies of Asia to the deserts of Arabia.

Obama will not like what I have to say in this series. But, no surprise, Republicans may not like what I write either.

This series will be a postpartisan look at Obama. I have no ties to any campaign, and no ties to either party (I vote in Republican primaries). I have deep affection for the frustrated voters in both parties who desperately want the truth. In analyzing candidates we apply different filters and different templates, and often reach different conclusions than the MSM. We are the later day embodiment of Hawai'i Five-0, an old TV series that still holds a place in the hearts of Hawai'ians. We get it right in the end: "Book'em Danno."

We are the first investigative teams to come to Hawai'i. How strange that MSM's have ignored a place that Michelle Obama calls so critical to understanding her husband. Because of my obsession for factual accuracy and relentless search for the truth about Barack Obama we were the first to land a team in Hawai'i. We have now begun a litigation operation as well as an investigaiton, all targeted on ferreting out the truth about Obama's past.

In my book "Obama: The Man Behind the Mask," I try to get behind Obama's "mask." The first chapter of the book is a psychological profile of the man. It has served well as an insight into his character and psyche.

Here are some general observations to open the series.

First, MSM often overlook that the Dunham Family, Obama's mother and grandmother, were strangers in this state. The Dunhams went from Kansas to Washington State. Their daughter grew up and graduated from high school in Washington. (Stanley) Ann Dunham arrived in Honolulu as a disoriented young adult, an outsider in an insular culture. That is why Ann gravitated to the University of Hawai'i, which serves as an oasis of cosmopolitanism for the island state. Nothing in Washington prepared her for Hawai'i.

Out of this confusion and upheaval came Barack Obama, a man of three families: his mother's family, his grandparents' family and his secret family.

When I began writing about Barack Obama over four years ago, the only "source" was his brilliant novel about himself, "Dreams From My Father." The book is a fantasy, not an autobiography, with invented characters and dialogue, and missing periods of his life. Obama is indeed a fascinating story, and we will tell it for the first time. A story of young love, and loss. A story of ultimate discovery and a voyage into an endless unknown of the soul. Will we get it right? I pray that we do, although I missed church at St Andrew's Cathedral this morning. I will let history be the judge of this series.

And I will close with a stark reminder.

Four years ago I exposed on WMUR-TV (Manchester, NH) who George Bush really was. No one wanted to listen. Bush's henchmen tried to destroy me (and obviously failed).

Today Americans are caught in an increasing hysteria, a crescendo of projection and fantasy. But the inescapable lesson of history is that there is always a real world looming behind the fantasy. A mask is still a mask; indeed, a mask is always a mask. I have called Obama a masked man in my book, and others call me a masked man (the "Lone Ranger") for my relentless pursuit of the truth about Obama.

In the end, the real world always wins. Truth triumphs. And fantasy usually leads to bitter disappointment and dismay. If you don't believe me, just ask George W. Bush.

I leave the good reader to judge my truths about Barack Obama, and act accordingly.

MONDAY: PART ONE, OBAMA AND ISLAM, AGAIN

NOTE: Monday one of the TV networks has assigned a camera crew to follow us in Honolulu, so our anonymity will be somewhat compromised. But our continuing investigaiton will not be. We remain totally independent of any MSM news organization.

MEDIA CONTACT: (866) 706-2639 or cell (917) 664-9329
E-MAIL: AndyMart20@aol.com [NOTE: We frequently correct typographical errors and additions/subtractions on our blogs, where you can find the latest edition of this release