The Betrayal

Andy Martin published

Law professor Andy Martin is asking the Hawai’i Intermediate Court of Appeals to order the release of Barack Obama’s original, typewritten 1961 birth certificate. “This is a historical document,” says Martin. “Why is Obama hiding the details of his life? Unless he has something to hide? I can assure Obama that the mysteries he likes to generate create a continuing firestorm of paranoia on the Internet about his birth, family and education. Ironically, if there is really nothing to hide, my lawsuit would actually benefit Obama by saving him from his own reflexive, self-destructive secrecy by putting his birth certificate out in the open.” Another format of the brief can be found at www. ContrarianCommentary.com.

No. 29643

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI’I

ANDY MARTIN,

Plaintiff-Appellant,

vs.

LINDA LINGLE, in her official
Capacity as Governor, et al.,

Defendants-Appellees.

APPELLANT’S BRIEF

ANDY MARTIN
P.O. Box 1851
New York, NY 10150-1851
Toll-free tel. (866) 706-2639
Toll-free fax (866) 707-2639
Plaintiff Pro se – Appellant

INDEX

Statement of the Case 3

Points of Error 5

Standard of Review 6

Argument 6

I.
THE CLAIM THAT THE CASE SHOULD BE DISMISSED
BECAUSE APPELLANT “FAILED TO SERVE THE DEFENDANTS”
IS AN INSULT TO THE INTELLIGENCE AND REFLECTS
BIAS AND HOSTILITY 6

II.
HAWAI’I OFFICIALS WAIVED SECRECY BY PUBLICLY
DISSEMINATING INCOMPLETE INFORMATION ABOUT
A HISTORICAL DOCUMENT 7

III.
THE CIRCUIT COURT MISCONSTRUED THE STATUTE 9

IV.
APPELLANT HAD STANDING TO SEEK ACCESS
TO HAWAII’ HISTORICAL RECORDS 13

V.
WHY DID THE TRIAL COURT DELIBERATELY AND REPEATEDLY APPLY THE WRONG STANDARD OF LAW? 15

VI.
THE TREATMENT APPELLANT RECEIVED WAS
SHAMEFUL AND HOSTILE 16

CONCLUSION 17

Table of citations

Carlisle v. One (1) Boat, 118 Haw. 107, 185 P.3rd 855 (Haw. ICA 2008)

Estate of Campbell, 106 Haw. 453, 106 P.3rd 1096 (Haw. 2005)

Great American v. Aetna Casualty, 76 Haw. 346, 876 P.2d 1314 (Haw. 1994)

Honolulu Advertiser v. Takao, 59 Haw. 237, 580 P.2d 58 (Haw. 1978)

Ikeoka v. Kong, 47 Haw. 220, 386 P.2d 855 (Haw. 1963)

Uncle John’s vs. Mid-Pacific, 71 Haw. 412, 794 P.2d 614 (Haw. 1990)

STATEMENT OF THE CASE
On October 17, 2008 Appellant Andy Martin (hereinafter “Appellant”) filed a Complaint for Declaratory Judgment with the Circuit Court (R01-R16). Appellant also filed an Emergency Motion for Order to Show Cause (R21-R24).
The Complaint sought access to the original, typewritten 1961 birth certificate of Barack Obama, then a candidate for president of the United States. The Emergency motion sought a ruling because “time is of the essence” to the impending presidential election.
The circuit judge acted on the emergency motion by setting a hearing date after the presidential election (on November 7, 2008, a ruling that is not in the record because that hearing became moot).
After this lawsuit was filed, the defendants, through respondent Fukino, disseminated information that they had examined the “original” birth certificate and it was valid (R50-90, Exhibit A).
The Attorney General (”AG”) filed an opposition to emergency relief, which was already moot, on November 10th (R43-R49). On November 5th the AG filed a Motion to Dismiss (R25-R30) on the grounds that (i) Appellant lacked standing and (ii) Appellant failed to state a claim on which relief could be granted and (iii) Appellant had failed to serve the defendants.
The Appellant filed his proof of service on November 19, 2008 (R93-R95) having hand served the defendants on the same date.
The court conducted a hearing as rescheduled on November 18, 2008. On January 12, 2009 the circuit court filed an order denying the request for “emergency” relief (R113-R116) and dismissing the complaint “with prejudice,” (R117-123) on the grounds that Appellant lacked standing and had failed to state a claim for relief.
Appellant had moved for reconsideration (R96-104) based on the original minute order of denial, and that motion was denied on January 27th (R124-R125). For good measure the circuit judge “sanctioned” appellant because his motion was “unsigned;” in doing so, the court violated its own rule by failing to give prior notice and an opportunity to cure the technical defect.

POINTS OF ERROR
The claim that the president of the United States is entitled to “privacy” of his Hawai’i birth records is an insult to historical scholarly research.
The claim that Plaintiff as an acknowledged expert and author of a book on President Obama, lacked “standing” to conduct historical scholarly research was legally erroneous.
The claim that Appellant had “failed to state a claim” to seek access to Hawaii’s historical records was bizarre.
The claim that Appellant’s lawsuit should be dismissed because he had “failed to serve” the defendants in less than thirty days was abusive and indicative of bias against an out-of-state litigant.
The imposition of a “sanction” by a judge who was violating the very rule he was sanctioning under was further indication of bias and hostility in the trial court.
The trial court deliberately and persistently applied the wrong standard of review the standard of an injunction, to this civil lawsuit.

STANDARD OF REVIEW
Because all of the rulings by the circuit judge were legal, the standard of review is plenary.

ARGUMENT
I.
THE CLAIM THAT THE CASE SHOULD BE DISMISSED
BECAUSE APPELLANT “FAILED TO SERVE THE DEFENDANTS”
IS AN INSULT TO THE INTELLIGENCE AND REFLECTS
BIAS AND HOSTILITY

Appellant would like this Court to rule in his favor on the historical issue, namely that Hawaii’s historical records concerning a president of the United States are indeed historical records and should be open to scholarly research and review. Nevertheless, Appellant would be engaging in false pretenses if he suggested that he felt anything less than the cold chill of bias in the way this case was handled in the trial court.
This lawsuit was filed on October 17th by an Illinois resident.
A month later, the trial court dismissed the action because the Appellant had “failed to serve the defendants,” even though the defendants were served twice, first by the Appellant when he sought emergency relief in October,and then personally served in November long before the court entered any dispositional order.
Unlike Rule 4 of the Federal rules, Hawai’i Rule 4 does not contained a 120-day limit on initial service. Nevertheless, Hawai’i courts have looked to federal rules for guidance. Punishing the Appellant with a dismissal “with prejudice” for not serving the defendants in less than thirty days is abusive and reflects contempt for the appearance of impartiality on the part of the local court.
II.
HAWAI’I OFFICIALS WAIVED SECRECY BY PUBLICLY
DISSEMINATING INCOMPLETE INFORMATION ABOUT
A HISTORICAL DOCUMENT

This lawsuit represents an example of manipulation by the Appellees. On the weekend before the presidential election, defendant Fukino disseminated a de facto “endorsement” of candidate Obama’s birth certificate, saying she had examined the document and it was “valid,” while continuing her refusal to release the actual record so her claims could be examined in context and while refusing to discuss the actual contents and information contained in the document.
With due respect, public officials are not free to manipulate records under their control, playing cat-and-mouse with the public by discussing the document while saying “I can see it but you can’t.” Such behavior constituted a waiver under Hawai’i law.
Hawai’i law clearly recognizes the principle of waiver in civil matters, Uncle John’s vs. Mid-Pacific, 71 Haw. 412, 794 P.2d 614, 616-617 (Haw. 1990), Great American v. Aetna Casualty, 76 Haw. 346, 876 P.2d 1314, 1319 (Haw. 1994). The best analysis of the definition of waiver that falls squarely on the convoluted issues of this case, however, is found at Ikeoka v. Kong, 47 Haw. 220, 386 P.2d 855, 870 (Haw. 1963) in a concurring opinion by Justice Lewis:
‘The question of whether or not a given state of facts brings the case within principles of the law of waiver is not always an easy one to determine. In Pabst Brewing Co. v. Milwaukee, 126 Wis. 110, 116, [105 N.W. 563] a statement of the principles which should govern in such cases, and which meets with our approval, is as follows: ‘It would seem that the more satisfactory ground on which to support the doctrine of waiver is that it is a rule of judicial policy, the legal outgrowth of judicial adhorrence, so to speak, of a person’s taking inconsistent positions and gaining advantages thereby through the aid of courts,–a rule by which, regardless [47 Haw. 249] of absence of any element of estoppel or consideration as those terms are popularly understood, the maxim that one shall not be permitted to blow hot, then with advantage to himself turn and blow cold, within limits sanctioned by long experience as required for the due administration of justice, has been prohibitively applied. * * *” Scott v. Pilipo, 25 Haw. 386, 391.
Dr. Fukino should not be allowed to play “now you see it, now you don’t,” with the public. Her discussion and her direct personal efforts to seek worldwide publicity for her manipulation of the historical record constituted a waiver of secrecy in the mind of any fair-minded and impartial observer.
III.
THE CIRCUIT COURT MISCONSTRUED THE STATUTE
The AG’s submission to the trial court cited the relevant statutory language out of context and sought to turn the broad statutory language in exactly the opposite direction from the express language in the law itself. This legerdemain is unacceptable and should raise the eyebrows of any reviewing court.
Any time a public official cites a statute’s language out of context, a question is raised as to “why?”
The critical statutory language of HRS §338-18(b) that the AG omitted from its Motion to Dismiss states:
(b) The department shall not permit inspection of public health statistics records, or issue a certified copy of any such record or part thereof, unless it is satisfied that the applicant has a direct and tangible interest in the record. The following persons shall be considered to have a direct and tangible interest in a public health statistics record:

The statute then goes on to enumerate the list of persons cited by the AG to the trial court. The AG’s omission of the introductory language to the section cited, when coupled with the AG’s attempts to alter the context of the statutory language, was a serious distortion of the law’s plain language.
Section 338-18(b) merely provides a list of persons who ipso facto are entitled to have a direct interest; by no reasonable reading can this language support the AG’s argument in the trial court that the list following the preamble is exclusive instead of exemplary.
The term “direct and tangible interest,” moreover, is not defined in the statute even though other critical terms are, see HRS §338-1. The omission of a definition of the term “direct and tangible interest,” when considered in the context of 338-1, shows conclusively that the legislature did not intend for the exemplars provided in the statute to be a self-limiting and exclusive list of persons entitled to access.
Indeed, the statute itself provides an open-ended opportunity for access in 18(b)(9) by vesting a state court with untrammeled and unrestrained authority to order access to any person on such terms as the court considers just and appropriate. No one can reasonably argue that 338-18(b)(9) in any way constrains or places any limiting language on the common law and common sense authority of a court to grant relief.
In the absence of a statutory definition for “direct and tangible interest,” this court is left on appeal to fashion a definition or interpretation out of common language and common sense. As this Court stated in Carlisle v. One (1) Boat, 118 Haw. 107, 185 P.3rd 855, 860 (Haw. ICA 2008):
A. Statutory Interpretation-Civil
Questions of statutory interpretation are questions
of law to be reviewed de novo under the right/wrong
standard.
Our statutory construction is guided by the following well-established principles:
[When construing a statute,] our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.
In construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.
This court may also consider the reason and spirit of the law, and the cause which induced the legislature to enact it to discover its true meaning.
Lingle v. Hawai‘i Gov’t Employees Ass’n, AFSCME, Local 152, 107 Hawai‘i 178, 183, 111 P.3d 587, 592 (2005) (internal quotation marks, brackets, and ellipses omitted) (quoting Guth v. Freeland, 96 Hawai‘i 147, 149-50, 28 P.3d 982, 984-95 (2001).
Is the underlying Health Act ambiguous? Appellant would argue that it is not. The statute clearly provides a list of persons or entities that are automatically entitled to access, but nowhere does the law state that the list is exclusive.
The statute itself contains in Subsection (9), a wide-open grant of jurisdiction to order access to records based on any terms the Court finds just and reasonable. Nowhere is the court’s power under Subsection (9) limited or confined. Clearly, the legislature was anticipating precisely such a case as this one, where a legitimate author and columnist seeks access to what have now become vital records in American history.
The Hawai’i Supreme Court decided an issue similar to the instant one, namely how to construe a general statute, in Estate of Campbell, 106 Haw. 453, 106 P.3rd 1096, 1101 (Haw. 2005)(”Campbell”). where the Court stated:
Whether Appellants constitute “interested persons” as defined in HRS § 560:1-201 is a matter of statutory interpretation and therefore a question of law subject to de novo review. Ing v. Acceptance Ins. Co., 76 Hawai’i 266, 874 P.2d 1091 (1994). As oft-stated, “our primary duty [when interpreting statutes] is to ascertain and give effect to the intention of the legislature, which is obtained primarily from the language of the statute itself.” Id. at 270, 874 P.2d at 1095. We have also noted on several occasions that “where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning.” Id. (citing AIG Hawaii Ins. Co. v. Estate of Caraang, 74 Haw. 620, 634, 851 P.2d 321, 328 (1993)). In this case, the language of the relevant statutes is plain and unambiguous.
Plaintiff submits that the statute sub judice is equally “plain and unambiguous” in (i) placing no limits on the categories of persons entitled to access to records and merely providing an exemplary list of persons who receive automatic a priori access, and (ii) allowing a court to exercise its general jurisdiction concerning access determinations, as provided by Subsection (9).
For purposes of this lawsuit, the Supreme Court also noted that the general grant of jurisdiction under HRS §603-21.9 could be read in pari materia with Subsection (9) of the Health statute. 106 P.3rd 1107 fn. 21.
Any reasonable construction of the statutory language would yield ineluctably to the conclusion that the legislature has provided broad powers to any court to allow access on terms the court believes are just and reasonable. The arguments advanced by the AG and accepted by the trial court shut the doors on historical research in Hawaii’s government archives.
IV.
APPELLANT HAD STANDING TO SEEK ACCESS
TO HAWAII’ HISTORICAL RECORDS

The appellant is a recognized authority on Barack Obama. He has written a book that is in the record (R for November 17, on “bulky shelf”). Appellant’s work is so highly regarded he has been cited by other bestselling authors.
Bona fide members of the media and authors such as Plaintiff enjoy a qualified constitutional and common law right to access vital public records. That general principle applies a fortiori to historical records concerning a president of the United States.
The common law/constitutional right to access vital public records was explicitly set forth in two directly applicable Hawai’i Supreme Court cases, Honolulu Advertiser v. Takao, 59 Haw. 237, 580 P.2d 58 (Haw. 1978)(”Takao”), and Estate of Campbell, 106 haw. 453, 106 P.3rd 1096 (Haw. 2005)(”Campbell”).
Because the term “direct and tangible interest” is not defined in the statute (see Part IV, supra), this Court can look to Takao, where the Court stated that “We construe the phrase ‘any party’ to mean any person who seeks the transcript for a legitimate and proper purpose.” 580 P.2d 61. Here, Plaintiff seeks access to the original typewritten 1961 COLB for what are facially “legitimate and proper purposes.”
Takao establishes an unequivocal common law right to copy public records, 580 P.2d 61. The common law right is critical because in Campbell the Supreme Court underscored that its decision rested on the common law and did not need to go to the extent of making a constitutional determination, 106 P.3rd 1108 fn. 26:
Additionally, inasmuch as our policy of judicial openness is rooted in the common law, see Takao, 59 Haw. at 239, 580 P.2d at 61 (concluding that the “public does generally have the right, established by the common law, to inspect and copy public records and documents, including judicial records”), we need not reach the issue of whether the right of access is also protected under both the federal and our state constitutions.

To claim that Appellant lacks “standing” to conduct historical research about the president of the United States in Hawai’i archives demeans this state and makes the state and its government officials look petty and provincial.
V.
WHY DID THE TRIAL COURT DELIBERATELY AND REPEATEDLY APPLY THE WRONG STANDARD OF LAW?

On October 17th, the Appellant sought issuance of an “order to show cause” (R21-R24) based on an upcoming election. The election passed. Despite the fact that the election was over, and the trial judge himself corrected his own rulings to state “president-elect,” the judge steadfastly refused to apply a normal standard of review and persistently insisted on applying to this lawsuit a standard concerning issuance of an injunction.
At no time did Appellant ever seek an injunction. The mere request for a pre-election “order to show cause” obviously became moot after the election. Despite that fact, this entire lawsuit was deliberately decided under the wrong standard of law, i.e. the standard applying to injunctions, when this lawsuit never sought an injunction.
Why did the trial court persistently apply the wrong standard of review?
VI.
THE TREATMENT APPELLANT RECEIVED WAS SHAMEFUL AND HOSTILE
This lawsuit and this appeal are about access to Hawaii’s historical records about the president of the United States. It is not a recusal battle. Nevertheless, when a judge imposes a “sanction” because appellant failed to sign a motion, and the rule the judge was sanctioning under required prior notice to a party before imposition of a sanction, the utter hostility of the trial court is painfully, and embarrassingly apparent.
Because this appeal involves pure statutory construction and review of a legal, as opposed to factually disputed, record this Court need not remand. The Court should decide the issues presented, as this Court is authorized to do, and direct release of the records in question.

CONCLUSION
Barack Obama is president of the United States. His records while living in Hawai’i are the now records of American history (as they were on November 19, 2008 when the “hearing” in this case was conducted). To claim that Hawai’i wants to protect the “privacy” of presidential records is an obviously absurd position that brings the judicial system into disrepute.
Secrecy laws were intended to protect the privacy of private citizens, not presidents. As a newspaper article submitted separately to this Court through the Clerk suggests, the president does not have traditional or standard privacy rights. Even if those privacy rights existed as to intimate matters, such as a loathsome disease or other issues traditionally taught in law school, “privacy” as a concept cannot logically be stretched to include restriction of historical access to a neutral and objective document: a birth certificate.
Most respectfully, this Court is asked to reverse the action of the trial court, and to decide the merits of Appellant’s claims by directing prompt release of any and all Hawai’i records concerning the president of the United States.

Respectfully submitted,
ANDY MARTIN

Tags: general //