Conservative talk radio keeps Obama citizenship conspiracy theory alive

Justice Souter has requested that Barack Obama produce his long version notarized birth certificate by December 1, in order to certify the election. If not, Obama will forfeit the election to John McCain and Sarah Palin.

Obama's grandmother in Kenya, says she was there at the hospital in Mombasa, Kenya when Barack Obama was born there.

Considering his father wasn't a citizen and his mother was 16 and living abroad when the clear requirement is she be living here for the 5 years prior (and be traveling abroad) and be 18 years of age.

Obamer loses.

This article is completely invalid.

INCOMPLETE RESEARCH and FAILURE TO CHECK sources should be a Federal Crime. Unfortunately any human with a computer can be a “journalist”.

This is an OP-ED article. HERE’S WHY …

1) All opinion and very little if any facts other than those surrounding the actual filing of the suit and the names of those involved.

2) POOR RESEARCH or NON AT ALL

a) Source Check: “Several Groups” is cited as a source? OK, my source for all my future articles will be “several groups” or “everybody” … NAME ALL OF THEM!

b) Source Check: FactCheck.org and Snopes.com? These are owned and/or advertised on by Obama. CONFLICT of interest

c) Poor research: “Investigated claims” … the “sources” say they “investigated the allegations? Is that all you require? They “investigated” by calling the Obama Campaign and asking if this is true. They even say this themselves and if not, did you contact them to find out what kind of “investigation” they did?

d) Poor Research: Barack Obama was NOT NAMED that as a child, and even if so, did you bother to READ the excuse for an “announcement” they posted? It was in an ADVERTISEMENT paper, like the Penny Saver of today! Is that fact? Also, the statement only says they had a SON, there is NO name given!

e) Further, I would rather see the actual microfilm (actual photo of paper) NOT a digitally produced version of a
newspaper.

f) Additionally, I LIVED in Hawaii during this time period and have a neighbor born the SAME year as Obama claims. The birth certificate he PHYSICALLY showed me from the SAME hospital, does not in any way resemble Obama’s BC. Anything short of that is a forgery.

If we hold specific candidates to these standards, why not ALL of them.

When journalists choose to filter the news and distort information or even worse, ignore the validity of the information, then they are frauds.

Jason Hancock is a lazy journalist who wants to crank out stories that lack any validity and truth or research.

I probably spent more time writing this and researching the items above than Jason Hancock does in an entire month of writing “articles”.

Pathetic.

It is truly unfortunate that the press has chosen to ignore this issue which has been around since last February. Numerous requests were made for Obama to produce his records, which in response his attorneys have had sealed. Requests under the Freedom of Information Act for his records have been denied. Request for his original birth certificate, the vault or long version, which the State of Hawaii has announced they are holding but will not release under Hawaii law, has yet to be produced. All it would take is for Obama to sign a release and pay $12.00 and produce. To this day he has refused to do so.

In response as it got closer to the election citizens started filing lawsuits to try and get an official government agency to step forward and say they have reviewed all of the records and they have found Obama to be a “natural born citizen”. Any post a cite to any governmental agency and not some website claiming that they have held the birth certificate, it is real and Obama is therefore a “natural born citizen”. What they have held, as noted above, is the short form version which, for the purpose of determining if Obama is a “natural born citizen” is useless. So all of the arguments about is it real, blah blah is all nonsense as it is not what is needed. Again, the long form version that the State of Hawaii has announced it is holding but is sealed is what is needed on this point.
There have now been 17 lawsuits filed around the country. Two of these are now in front of the Supreme Court. The Berg matter will likely go no where, the other one has a Conference on Dec. 5 where all of the Justices will meet in private and decide if they will take up this very important issue.
It should also be understood that in the Berg case instead of showing up in court with a copy of the long version of the birth certificate so the judge could rule on the issue, instead Obama and the DNC showed up with a team of attorneys and fought the case on the technical grounds that a citizen does not have the right under the Constitution to challenge the credentials of a candidate. The court agreed and the case was dismissed on that technicality and is now at the Supreme Court. That case was filed in Federal Court, the other case with the SC was filed in State Court and may have more standing. But either case is going to be an uphill fight.
In the meantime the case filed in Hawaii by Andy Martin asking for Hawaii to produce a copy of the vault birth certificate was denied on the basis that a the public's interest in privacy overrides the interest in this birth certificate. The judge in that case obviously wanted to duck the issue as how many times in the last 50 years has a request been made in Hawaii to produce the birth certificate of a President elect. Yes a huge threat to public privacy.
The case filed by Keyes does not have the same standing arguments. It will require Obama and the DNC to come to court prepared to provide the documents to finally show to a legitimate government official his records to prove he meets the Constitutional standard of a “natural born citizen”. Why has it taken this when Obama could have ended this last February by paying $12.00 and producing the vault or original version of the birth certificate?
The writ of mandate filed by Keyes is here:https://services.saccourt.com/publicdms2/DefaultDMS.aspx

If that does not work go to the Sacramento Superior Court and you can find it. I urge everyone to get a copy and read it. There are issues stated in the complaint that should have been asked of Obama by the main stream press long ago. Why have they not asked how he came to travel in Pakistan in 1981 when a US citizen could not go there? How did he get in Pakistan if he could not use his US passport? It is likely that he used an Indonesian passport. If so, he likely does not meet the test of a “natural born citizen”. The Keyes case does not suffer from the lack of standing and it does not require discovery. Obama either shows up with the records to prove he meets the standard or he looses the 55 California electoral votes. It is incredible to me that Obama and the DNC have not been forced to answer this publicly to this date. We are on the verge of a Constitutional crisis. On the eve of his taking residence in the White House John Adams wrote this to his wife Abigail:

“Before I end my letter, I pray Heaven to bestow the best of Blessings on this House and all that shall hereafter inhabit it. May none but honest and wise Men ever rule under this roof.”

Before Obama crosses the threshold he needs to be honest about his past and proof that he meets the Constitutional standard of a “natural born citizen”.

I wish to reply to this posting, because it, along with several others, contain numerous bits of misinformation, leading to an errant conclusion.

Now, I wish to be quite fair about this, because I realize that many people who are caught up in this co0ntroversy have a great deal at stake emotionally and intellectually, so my explanation will tend to be rather lengthy. I will try, however, to make it clear.

Several persons have brought suit in various courts around the country and have raised in various public forums issues concerning whether Barack Obama is indeed a natural born citizen. These litigants claim that Obama has failed to prove that he was born in the United States. They claim further that there is credible evidence that Obama was born outside the United States.

By bringing lawsuits, these people have asked the courts of the United States to grant several forms of relief. Some have asked the courts to order Obama to produce additional documents to prove that he was indeed born in the United States. Others have asked the courts to declare Obama not qualified to run for the presidency on the grounds that he was not born in the United States. To date, no court has ruled in favor of these claims, and some courts have rejected them. The United States Supreme Court now has before it a petition to hear an appeal from one of these cases.

Because the people challenging Obama's eligibility to run for the presidency have taken their claims to court, it is reasonable to begin by considering how the courts handle this sort of claim.

COURT PROCEDURE:

When someone goes to court, neither that person — generally referred to as a “party” — nor the court invents new rules for each case. The courts have prescribed rules. By going to court, a party, the “plaintiff,” agrees to follow those rules. By bringing the other party, the “defendant,” to court, the plaintiff can compel the defendant to follow the same court rules.

There are several rules that are relevant to the cases brought against Barack Obama, the Democratic National Committee, and various state officials who are officially charged with conducting elections in various capacities. There are two rules that have come to play in the suits against Obama. The first rule has to do with something called “standing,” and the second has to do with the “burden of production.”

Standing has become a source of considerable controversy. Some commentators have made comments that this idea is something new. It is not. It has been around the courts for many years. The basic idea underlying the concept of standing is that only a person who has a true interest in a case should bring that case.

Consider an example: if my neighbor Jones goes on to the property of my neighbor Smith and kills Smith's prize cow, Smith can sue Jones. Can I?? No. I have not been injured.

There is a closely related doctrine, called the “political question” doctrine. There are certain questions that the courts will not consider because the courts feel that the questions are better left entirely to the more overtly political branches of government, the executive and the legislative.

Now, one of the questions in the various cases brought challenging Obama's eligibility to run for the presidency is whether anyone who has brought any of these suits has standing. One of the most prominent cases in which this has been raised is that brought in Pennsylvania by Philip Berg.

In that case, Obama and the various other defendants challenged Berg's right to bring the case on the grounds that he is not being injured in any way that makes his injury any different from the injury suffered by anyone else.

This seems to raise a problem. If every American potentially suffers an identical injury with every other American, does this mean that no one can bring a lawsuit to seek relief? The answer is “Yes.” Generally, this is the rule that keeps political questions out of the courts.

Phil Berg is an attorney. To become an attorney, he had to study the procedure involved in the courts, and this included the doctrine of standing, and he had to prove his competence in understanding standing by passing the bar examination to become a practicing attorney.

In his lawsuit against Barack Obama, Philip Berg knew about standing. The various defendants responded to his lawsuit by moving to dismiss the suit on the grounds that Berg did not have standing. Berg responded to this motion to dismiss by filing a Memorandum in Opposition, arguing that as a result of various prior cases, he had a sufficiently specific injury that he did have a right to bring this lawsuit.

The timing of the motion is important, because the lawsuit between Berg and Obama involved several aspects all moving along at once. One of the more important of these additional aspects was that Berg sought what is called “discovery.” Berg served on Obama what are called “Requests for Admission.” These are probably best compared to “true-false” questions. Any party can served on any opposing party “request for admission,” and the party receiving these requests for admission must respond within a period of time set by the rules of the court, within 30 days. These Requests for Admission are allowed under what is called Rule 36 of the Federal Rules of Civil Procedure.

The receiving party, in this case Obama, can respond to each of these requests in any one of several ways. He can admit; he can deny; he can assert that he does not know and cannot learn through reasonable inquiry (called “denying for lack of knowledge”); or he can interpose a motion that takes precedence over discovery.

As a general rule, if a motion will end a case, then a party can respond to discovery materials with that motion, and that party does not need to respond to the discovery requests until the motion is decided. (After all, discovery can be a nuisance, and damnably expensive. If a party serving discovery materials has no right to bring the suit in the first place, why should the other party have to respond to discovery requests?)

Obama and his fellow defendants responded to the Requests for Admission by filing a Motion to Dismiss for Lack of Standing. As I mentioned, Berg unquestionably knew about this Motion: he responded by filing a Memorandum in Opposition to the motion to dismiss.

As soon as Obama and company filed that Motion to Dismiss, discovery stopped. This came before the 30-edays for responding had expired. This is not something that the court did to Berg to single him out for special punishment. It is not even something over which the court had any discretion. The rules of court say that if a motion to dismiss is filed, discovery stops automatically.

This is where one of the more flagrant bits of misinformation comes into play. If Obama and company had never filed their Motion to Dismiss, Berg's Requests for Admission would have been treated as admitted. “IF.”

On October 24, Berg publicly announced that the Obama camp had admitted the various points covered by his Requests for Admission. World Net Daily accepted this announcement at face value, even though it mentioned the Motion to Dismiss. World Net Daily might be forgiven for this mistake. After all, they are merely journalists, and journalists often do a poor job of reporting legal matters, but when Berg declared that Obama had admitted the Requests for Admission by failing to give timely answers, he showed that his ethics as a lawyer are questionable at best. Either he knew that what he was announcing was not true, or he was demonstrating incredible incompetence.

The trial court in Pennsylvania then ruled on Obama's Motion to Dismiss. It ruled that Berg did not have standing, and it dismissed the lawsuit. Also, in a supplemental ruling, the court dismissed all pending proceedings. In other words, it ruled that Obama and company did not have to respond to any of Berg's various discovery materials.

APPEAL:

When the trial court granted Obama's motion to dismiss, Berg appealed. This appeal went to the U.S. Court of Appeal for the Third Circuit, the federal appellate court that oversees federal trial courts in Pennsylvania.

Notably, an appeal is a legal proceeding. It is not a retrial of the facts. It is a reconsideration only of the legal issues decided by the court below. The appellate court cannot call for factual materials that were not considered by the trial court. The appellate court looks only at the record that had been submitted to the trial court, and asks if the trial court applied the law properly.

In Berg's suit against Obama, what Berg argued on appeal was that the trial court had misapplied the applicable rules of law when it ruled that he did not have standing.

This means, of course, that the appellate court did not ask anyone to go forward with the discovery business. The Court of Appeals does not do discovery. The one question that the Court of Appeals considered, the only question that it considered was this: Did the trial court apply the law correctly when it ruled that Philip berg did not have standing.

The Court of Appeals found that the trial court did apply the law correctly. Because of this, the Court of Appeals affirmed the trial court ruling. Berg's suit remained dismissed.

Now there is one point to be noticed about this appeal. It was what is called an “appeal of right.” Berg had an automatic and inalienable right to appeal. The Court of Appeals could not refuse to hear his appeal, no matter what they thought of the merits of the appeal. Any parties who does not get everything the party asked for in the trial court can appeal, and the Court of Appeals must hear the appeal.

TO THE SUPREME COURT:
By contrast, the procedure for going before the U.S. Supreme Court is very different. Essentially, no one has a right to take a case before the U.S. Supreme Court.

To get a case before the U.S> Supreme Court, a party must petition for a Writ of Certiorari. A Writ of Certiorari is an order that actually goes to the pertinent appellate court and orders the appellate court to send the case on up.

A party who has lost in a court of appeals can ask the U.S. Supreme Court to hear its case, by filing a petition for a writ of certiorari. If the Supreme Court grants the petition and issues the Writ, then the case goes to the Supreme Court. More often than not, however, the Supreme Court denies the writ, and the case ends with the court of appeals' ruling. And it is more often than not that the Supreme Court grants a petition and allows the writ. The Supreme Court receives and reviews about 50,000 petitions for writs of certiorari, and it grants about 80.

When a party files a Petition for a Writ of Certiorari, that party will file a Memorandum in Support of the Petition. This is a written argument urging that the Supreme Court agree to hear the case. The opposing party, the winner in the Court of Appeals, will respond to this Memorandum in Support with a Memorandum in Opposition to the Petition, arguing that the Supreme Court should not hear the case, but simply leave the Court of Appeals' decision alone.

In his case against Obama, Philip Berg filed a Petition for a Writ of Certiorari, with a Memorandum in Support of the Petition. He also again took an action so extreme as to bring his good faith into question. He filed an emergency motion, asking that the supervisory justice for the Third Circuit issue an injunction delaying the national election.

This action was extreme because the date of the national election for the Presidency is set out in the Constitution. The election is to be held on the Tuesday after the first Monday in November. It is not to be held that day or some other time when the Supreme Court says it can be held. So addressing his motion for an emergency injunction to a justice of the Supreme Court who had specifically taken an oath to uphold the Constitution, Mr. Berg asked that justice to abrogate part of the Constitution. I hope no one is surprised that this motion to delay the election was denied.

When a party who has lost in the court below filed a petition for a writ of certiorari with the Supreme Court, the other party has a right to file a response. Technically a response is not required, and against many of the petitions filed by semi-literate prisoners or “jail-house lawyers,” no response is filed. In the case of Berg v. Obama, the Supreme Court notified Obama and the other defendants that if they wished to respond, they were to file their response on or before December 1,

Here is where another blob of misinformation has made its way onto the Internet. There are many web pages reporting that as of December 1, Obama must produce the original of his birth certificate. Actually, this is nonsense. I have no idea who started this rumor, but it is baseless. Remember: the Supreme Court is an appellate court. It is not a trial court. Evidence is factual information, and it only goes to the trial court,

The only thing that Obama will present on December 1 is a Memorandum in Opposition to Berg's petition for a writ of certiorari. This will be a legal argument in which Obama and company will try to convince the Supreme Court that the rulings by the Court of Appeals for the Third Circuit and the trial court were right, that Berg does not have standing.

As mentioned, Obama and company are not even required to file a respond to the petition, but in all probability, they will. Berg, after all, is a lawyer, and this is a case of some importance rather than being the result of a jailhouse lawyer, so a response will probably be filed.

Notably, this Memorandum will probably not be anything that most Americans will find dramatic, moving, or even readable. If the average person were to read it, he would probably develop a response along the lines of how Scott Turow, author of “The Paper Chase,” had to reading cases as a law student: he felt it was like trying to stir concrete with his eyelashes.

The great bulk of the Memorandum will be a very dry argument over the issue of standing. Does Philip Berg have a claim that is sufficiently differentiated from the claim of any other person to warrant being allowed to bring this claim?

Then the Supreme Court will respond. Sometime after the Court received the various Memoranda from the various parties, and each of the nine justices ha considered the Memoranda, the justices will enter their private conference room. Under the direction of Chief Justice John Roberts, they will consider every petition for a writ of certiorari, and they will probably have more than 100 to go over. Most will get only cursory discussion. The justice will handle them about the way a tried, jaded personnel manager handles bad resumes. Chief Justice Roberts will read off the number and ask for discussion. If there is none, the case is marked for denial, and the justice move on.

If there is discussion, every justice is free to join, and eventually the Chief Justice will call for a vote. If four of the nine justices decide that the case should be heard, then the writ of certiorari will issue, and the case will be set for written briefing and oral argument. If there are not four justices in favor of hearing the case, the writ will be denied.

As mentioned, the odds against Berg are extreme. Standing is a well-established doctrine. The lower courts appear to have considered the issue thoroughly and thoughtfully, and because standing is the only issue before the Court, it will be a huge and unexpected in for Berg if he gets a writ of certiorari.

If he does, even then, it will not mean that Obama and company must produce anything. It will mean that the Supreme Court has agreed to hear full arguments on the subject of Berg's standing. But for the moment, assume that this did happen. If the Supreme Court heard Berg's case in full, and if a majority of the justices ruled that he did have standing, would the Supreme Court then order Obama to produce the birth certificate? No. It would merely rule that the trial court was wrong, and it would send the entire case back to the trial curt with instructions to pick things up where they were and continue. Obama would then respond to the Requests for Admission; the trial court would consider arguments over what should Obama have to produce, and the whole matter would go on.

All of that is unlikely, because the Supreme Court is downright stingy abut granting writs of certiorari. In all probability, Berg's case, like thousands of others, will end in the Supreme Court with a terse, impersonal notice: “Petition for Writ of Certiorari denied.”

In some ways, that will be unfortunate, because it will mean a case that has aroused a great deal of emotional interest will end on a technical ruling rather than a ruling on the merits.

However, there is already enough information available, and the issue on the merits is actually straight-forward enough that we can predict what a trial court would rule if the Supreme Court were to hear this case and send it back to a trial court for further proceedings.

THE MERITS:

Any discussion of the merits of this dispute is muddled by one troublesome fact: this case has been tried in the media as much as any dispute since the original O. J. Simpson case. And the media treatment here has been even more driven by the emotional biases of the many media players involved. Things are being asserted as unassailable fact that are completely silly.

Consider one of the more publicized items. Various websites what asserted that Obama’s Kenyan grandmother has declared that Obama was born in a village in Kenya. Question: Is this valid evidence? No. If Berg were to get a full-blown trial, he would not be able to introduce this. Why not? Because the woman is being asked to give testimony (to say that something happened), and a person’s testimony is generally not valid evidence unless it is given under oath in circumstances in which the witness is subject to cross-examination. There is no indication that this testimony was given under oath, and there is no indication that anyone representing Obama was allowed to ask her any questions by way of cross-examination.

Further, what she said is far less than what is being trumpeted on the various websites. The woman does not speak English. She speaks one of the 62 tribal languages spoken in Kenya. And in translation, her statement is not a straight-forward declaration that Barack Obama was born in her village. The initial translation given by Philip Berg supporters was “Barack Obama is a son of this village.”

Question: Does “Barack Obama is a son of this village” mean “Barack Obama was born in this village”? Is that the only reasonable meaning that could be given to these words. Or is this statement sufficiently ambiguous that it could mean any number of things. For example, there is an organization in the United States called the Daughters of the American Revolution. Does anyone seriously believe that the women in that organization are the immediate descendants, the literal daughters, of persons who fought in the American Revolutionary War? In churches, Jesus Christ is sometimes referred to as the “son of David.” Does that mean that David is literally the father of Christ?

Could the woman’s statements mean that she believes that Barack Obama was born in her village in Kenya? Yes. But before a court will consider this as evidence, she will need to give her testimony under oath, subject to cross-examination, and because she does not speak English, her testimony will have to be translated by a court-certified, disinterested translator. Then, but only then, a court can consider it as valid evidence.

There is, however, evidence on which Berg v. Obama and other cases raising the same issue can be decided. To understand what the evidence is and how it could be evaluated, we need to return to something said near the outset: Because the people challenging Obama have taken their claims to court, it is reasonable to begin by considering how the courts handle this sort of claim. There are certain rules that are relevant to cases like the ones being brought against Barack Obama. One of those rules has to do with the “burden of production.” (Here I am borrowing material from earlier in this post, although this is not a true quotation/repetition of that material.)

As far as I know, there have been very few lawsuits challenging the eligibility of a major party candidate to run for the presidency. (There was a lawsuit challenging McCain’s eligibility, decided on the issue of standing in 2000.) So the potential consequences of these lawsuits are relatively unprecedented. On the other hand, there is a specific point at issue in these cases, that is much more mundane. That point is really rather simple and straightforward.

Stated in very general terms, the controlling legal question in this case is this: if a party to a lawsuit is required to prove something that the party can prove through the production of official documents held by official agencies of the State of Hawaii, what must that party produce?

Now, as with the question of standing, I would urge that everyone pause and consider this question, because it is a matter of grave importance.

There are several options here. Phil Berg (and others similarly situated) maintain that Barack Obama must produce the specific documents that Philip Berg has demanded. Barack Obama maintains that he must produce only the documents that he has already provided.

And Obama is wrong.

And Berg is wrong.

Because the courts work under a system of rules of law, neither party gets to charge into court and demand that the rules that it wants are the new rules for a lawsuit. (Consider for a moment how any reader would feel if he or she were sued and the opposing party got to set the rules for the lawsuit. Would that be fair? Would it be reasonable?)

So who gets to set the rules?

Who gets to set the rules if it is neither Obama nor Berg?

The answer, and this is the crux of this whole discussion –-:
The State of Hawaii gets to set the rules.

While that may seem odd, consider a few points: while this may be the most consequential case ever to turn on what an official state document claims, is it the first case ever to be decided on what an official state document claims? Certainly not. Every year thousands of people claiming to have been born in Hawaii apply for passports, submitting official copies of their birth certificates to the U.S. State Department to support the claim that they are U.S. citizens. By law, this has to be an official copy. In the same way, there are thousands of other transactions in which various people have to submit official copies of various documents from the State of Hawaii, for everything from the transfer of titles to automobiles to applications for business licenses.

This is not something where agencies like the State Department, insurance companies, or the courts invent new rules every time a document comes in claiming that it is an official copy of an official document. To make the process rational and workable, the State of Hawaii has adopted standards for what constitutes an “official document.” In the case of a birth certificate, Hawaii has adopted a law, passed by the Hawaii State Legislature, signed into law by the governor, and on the books for all to see. The two statutory sections that define what an official Hawaiian birth certificate is are Hawaii Revised Statutes 338-13(b) and 338-19.

Section 338-13(b) says:
Copies of the contents of any certificate on file in the department, certified by the department shall be considered for all purposes the same as the original, subject to the requirements of sections 338-16, 338-17, and 338-18.

Section 338-16 deals with procedure concerning late and altered birth certificates. There is no record in the Hawaii state records of Obama’s birth certificate having been filed more than one year after his birth, or of it having been officially altered.

Under section 338-17, a late or (officially) altered birth certificate offered as evidence has the evidentiary value that the court in which it is offered decides it shall have. Again, there is no suggestion that this law applies to Obama’s cases.

Section 338-18 is important to this case. It defines who has a right to get an official birth certificate from the State of Hawaii. Notably, it’s a very exclusive list. Basically, it is limited to people who have a direct financial stake in the affairs of the individual. Notably, a political stake does not qualify.

Finally section 338-19 reads:
§ 338-19. Photostatic or typewritten copies of records.
The department of health is authorized to prepare typewritten, photostatic, or microphotographic copies of any records and files in its office, which by reason of age, usage, or otherwise are in such condition that they can no longer be conveniently consulted or used without danger of serious injury or destruction thereof, and to certify to the correctness of such copies. The typewritten, photostatic, or microphotographic copies shall be competent evidence in all courts of the State with like force and effect as the original.

What’s all that mean? It means that the Department of Health is not required to produce a true exact duplicate of the 1961 data. There have been complaints among those alleging fraud that the Certification of Live Birth that the Obama camp has posted clearly looks like something done by a laser printer rather than the sort of typewriter that would have been used in 1961. This statute says “that’s fine.” Birth certificate is still an official birth certificate no matter what sort of device produced it, so long as it has the data on it, so those allegations of forgery are completely baseless.

Now, what does all of this mean? It mean that according to the State of Hawaii, whose rules control in this case, that the Certification of Live Birth posted on the Internet by the Obama people is a legally sufficient document.

Can a court order that the State of Hawaii produce the “original, original, original” birth certificate that Philip Berg and company insist is the only real proof that they will accept? Legally, no. Not unless they can prove that the Health Department’s copy as posted on the Internet is somehow bogus.

On that point, given the sheer number of requests, the State of Hawaii has pre-empted the courts. The State of Hawaii was not legally required to respond to all of the ballyhoo this issue has raised. Legally, it could have said, “Go away” and nobody would have had any right to make it go farther.

The State of Hawaii did not do that. In late October, the Hawaii State Health Director personally examined the original birth certificate in an effort to address numerous requests for the document. The Health Director, Chiyome Fukino, said she and the vital statistics registrar viewed and verified Obama's birth certificate. Further, they verified that this birth certificate has been handled like every other birth certificate in the normal order of business. That means that the State of Hawaii has vouched for the total veracity of the certificate as posted by the Obama camp.

And what of all the claims that the posted Obama certificate is a forgery? Well, the State of Hawaii, which has the un-forged original, says that the version that Obama has posted is real.

But what about . . . ?
And what about . . . ?
But what about . . . ?
And what about . . . ?
And what about . . . ?
And what about . . . ?

I’ve been trying to figure out some very compelling argument about this. My view is that the legal system will work through this case on December 5, when the justices of the Supreme Court will meet in conference, and they will get to Berg v. Obama, and they will rule that this case does not warrant inclusion on the Court’s busy calendar.

Will that silence the doubters? I do not believe it will. I believe that many will continue to cry out that Obama is not qualified to be President because he has not proven to THEIR satisfaction that he was born in Hawaii.

What can I say to them? Well, I suppose I can try this: How do you think the Apostle Thomas felt, touching Jesus’s wrists and side, when Jesus chided him with, “Oh, ye of little faith”?

I wish to reply to this posting, because it, along with several others, contain numerous bits of misinformation, leading to an errant conclusion.

Now, I wish to be quite fair about this, because I realize that many people who are caught up in this co0ntroversy have a great deal at stake emotionally and intellectually, so my explanation will tend to be rather lengthy. I will try, however, to make it clear.

Several persons have brought suit in various courts around the country and have raised in various public forums issues concerning whether Barack Obama is indeed a natural born citizen. These litigants claim that Obama has failed to prove that he was born in the United States. They claim further that there is credible evidence that Obama was born outside the United States.

By bringing lawsuits, these people have asked the courts of the United States to grant several forms of relief. Some have asked the courts to order Obama to produce additional documents to prove that he was indeed born in the United States. Others have asked the courts to declare Obama not qualified to run for the presidency on the grounds that he was not born in the United States. To date, no court has ruled in favor of these claims, and some courts have rejected them. The United States Supreme Court now has before it a petition to hear an appeal from one of these cases.

Because the people challenging Obama's eligibility to run for the presidency have taken their claims to court, it is reasonable to begin by considering how the courts handle this sort of claim.

COURT PROCEDURE:

When someone goes to court, neither that person — generally referred to as a “party” — nor the court invents new rules for each case. The courts have prescribed rules. By going to court, a party, the “plaintiff,” agrees to follow those rules. By bringing the other party, the “defendant,” to court, the plaintiff can compel the defendant to follow the same court rules.

There are several rules that are relevant to the cases brought against Barack Obama, the Democratic National Committee, and various state officials who are officially charged with conducting elections in various capacities. There are two rules that have come to play in the suits against Obama. The first rule has to do with something called “standing,” and the second has to do with the “burden of production.”

Standing has become a source of considerable controversy. Some commentators have made comments that this idea is something new. It is not. It has been around the courts for many years. The basic idea underlying the concept of standing is that only a person who has a true interest in a case should bring that case.

Consider an example: if my neighbor Jones goes on to the property of my neighbor Smith and kills Smith's prize cow, Smith can sue Jones. Can I?? No. I have not been injured.

There is a closely related doctrine, called the “political question” doctrine. There are certain questions that the courts will not consider because the courts feel that the questions are better left entirely to the more overtly political branches of government, the executive and the legislative.

Now, one of the questions in the various cases brought challenging Obama's eligibility to run for the presidency is whether anyone who has brought any of these suits has standing. One of the most prominent cases in which this has been raised is that brought in Pennsylvania by Philip Berg.

In that case, Obama and the various other defendants challenged Berg's right to bring the case on the grounds that he is not being injured in any way that makes his injury any different from the injury suffered by anyone else.

This seems to raise a problem. If every American potentially suffers an identical injury with every other American, does this mean that no one can bring a lawsuit to seek relief? The answer is “Yes.” Generally, this is the rule that keeps political questions out of the courts.

Phil Berg is an attorney. To become an attorney, he had to study the procedure involved in the courts, and this included the doctrine of standing, and he had to prove his competence in understanding standing by passing the bar examination to become a practicing attorney.

In his lawsuit against Barack Obama, Philip Berg knew about standing. The various defendants responded to his lawsuit by moving to dismiss the suit on the grounds that Berg did not have standing. Berg responded to this motion to dismiss by filing a Memorandum in Opposition, arguing that as a result of various prior cases, he had a sufficiently specific injury that he did have a right to bring this lawsuit.

The timing of the motion is important, because the lawsuit between Berg and Obama involved several aspects all moving along at once. One of the more important of these additional aspects was that Berg sought what is called “discovery.” Berg served on Obama what are called “Requests for Admission.” These are probably best compared to “true-false” questions. Any party can served on any opposing party “request for admission,” and the party receiving these requests for admission must respond within a period of time set by the rules of the court, within 30 days. These Requests for Admission are allowed under what is called Rule 36 of the Federal Rules of Civil Procedure.

The receiving party, in this case Obama, can respond to each of these requests in any one of several ways. He can admit; he can deny; he can assert that he does not know and cannot learn through reasonable inquiry (called “denying for lack of knowledge”); or he can interpose a motion that takes precedence over discovery.

As a general rule, if a motion will end a case, then a party can respond to discovery materials with that motion, and that party does not need to respond to the discovery requests until the motion is decided. (After all, discovery can be a nuisance, and damnably expensive. If a party serving discovery materials has no right to bring the suit in the first place, why should the other party have to respond to discovery requests?)

Obama and his fellow defendants responded to the Requests for Admission by filing a Motion to Dismiss for Lack of Standing. As I mentioned, Berg unquestionably knew about this Motion: he responded by filing a Memorandum in Opposition to the motion to dismiss.

As soon as Obama and company filed that Motion to Dismiss, discovery stopped. This came before the 30-edays for responding had expired. This is not something that the court did to Berg to single him out for special punishment. It is not even something over which the court had any discretion. The rules of court say that if a motion to dismiss is filed, discovery stops automatically.

This is where one of the more flagrant bits of misinformation comes into play. If Obama and company had never filed their Motion to Dismiss, Berg's Requests for Admission would have been treated as admitted. “IF.”

On October 24, Berg publicly announced that the Obama camp had admitted the various points covered by his Requests for Admission. World Net Daily accepted this announcement at face value, even though it mentioned the Motion to Dismiss. World Net Daily might be forgiven for this mistake. After all, they are merely journalists, and journalists often do a poor job of reporting legal matters, but when Berg declared that Obama had admitted the Requests for Admission by failing to give timely answers, he showed that his ethics as a lawyer are questionable at best. Either he knew that what he was announcing was not true, or he was demonstrating incredible incompetence.

The trial court in Pennsylvania then ruled on Obama's Motion to Dismiss. It ruled that Berg did not have standing, and it dismissed the lawsuit. Also, in a supplemental ruling, the court dismissed all pending proceedings. In other words, it ruled that Obama and company did not have to respond to any of Berg's various discovery materials.

APPEAL:

When the trial court granted Obama's motion to dismiss, Berg appealed. This appeal went to the U.S. Court of Appeal for the Third Circuit, the federal appellate court that oversees federal trial courts in Pennsylvania.

Notably, an appeal is a legal proceeding. It is not a retrial of the facts. It is a reconsideration only of the legal issues decided by the court below. The appellate court cannot call for factual materials that were not considered by the trial court. The appellate court looks only at the record that had been submitted to the trial court, and asks if the trial court applied the law properly.

In Berg's suit against Obama, what Berg argued on appeal was that the trial court had misapplied the applicable rules of law when it ruled that he did not have standing.

This means, of course, that the appellate court did not ask anyone to go forward with the discovery business. The Court of Appeals does not do discovery. The one question that the Court of Appeals considered, the only question that it considered was this: Did the trial court apply the law correctly when it ruled that Philip berg did not have standing.

The Court of Appeals found that the trial court did apply the law correctly. Because of this, the Court of Appeals affirmed the trial court ruling. Berg's suit remained dismissed.

Now there is one point to be noticed about this appeal. It was what is called an “appeal of right.” Berg had an automatic and inalienable right to appeal. The Court of Appeals could not refuse to hear his appeal, no matter what they thought of the merits of the appeal. Any parties who does not get everything the party asked for in the trial court can appeal, and the Court of Appeals must hear the appeal.

TO THE SUPREME COURT:
By contrast, the procedure for going before the U.S. Supreme Court is very different. Essentially, no one has a right to take a case before the U.S. Supreme Court.

To get a case before the U.S> Supreme Court, a party must petition for a Writ of Certiorari. A Writ of Certiorari is an order that actually goes to the pertinent appellate court and orders the appellate court to send the case on up.

A party who has lost in a court of appeals can ask the U.S. Supreme Court to hear its case, by filing a petition for a writ of certiorari. If the Supreme Court grants the petition and issues the Writ, then the case goes to the Supreme Court. More often than not, however, the Supreme Court denies the writ, and the case ends with the court of appeals' ruling. And it is more often than not that the Supreme Court grants a petition and allows the writ. The Supreme Court receives and reviews about 50,000 petitions for writs of certiorari, and it grants about 80.

When a party files a Petition for a Writ of Certiorari, that party will file a Memorandum in Support of the Petition. This is a written argument urging that the Supreme Court agree to hear the case. The opposing party, the winner in the Court of Appeals, will respond to this Memorandum in Support with a Memorandum in Opposition to the Petition, arguing that the Supreme Court should not hear the case, but simply leave the Court of Appeals' decision alone.

In his case against Obama, Philip Berg filed a Petition for a Writ of Certiorari, with a Memorandum in Support of the Petition. He also again took an action so extreme as to bring his good faith into question. He filed an emergency motion, asking that the supervisory justice for the Third Circuit issue an injunction delaying the national election.

This action was extreme because the date of the national election for the Presidency is set out in the Constitution. The election is to be held on the Tuesday after the first Monday in November. It is not to be held that day or some other time when the Supreme Court says it can be held. So addressing his motion for an emergency injunction to a justice of the Supreme Court who had specifically taken an oath to uphold the Constitution, Mr. Berg asked that justice to abrogate part of the Constitution. I hope no one is surprised that this motion to delay the election was denied.

When a party who has lost in the court below filed a petition for a writ of certiorari with the Supreme Court, the other party has a right to file a response. Technically a response is not required, and against many of the petitions filed by semi-literate prisoners or “jail-house lawyers,” no response is filed. In the case of Berg v. Obama, the Supreme Court notified Obama and the other defendants that if they wished to respond, they were to file their response on or before December 1,

Here is where another blob of misinformation has made its way onto the Internet. There are many web pages reporting that as of December 1, Obama must produce the original of his birth certificate. Actually, this is nonsense. I have no idea who started this rumor, but it is baseless. Remember: the Supreme Court is an appellate court. It is not a trial court. Evidence is factual information, and it only goes to the trial court,

The only thing that Obama will present on December 1 is a Memorandum in Opposition to Berg's petition for a writ of certiorari. This will be a legal argument in which Obama and company will try to convince the Supreme Court that the rulings by the Court of Appeals for the Third Circuit and the trial court were right, that Berg does not have standing.

As mentioned, Obama and company are not even required to file a respond to the petition, but in all probability, they will. Berg, after all, is a lawyer, and this is a case of some importance rather than being the result of a jailhouse lawyer, so a response will probably be filed.

Notably, this Memorandum will probably not be anything that most Americans will find dramatic, moving, or even readable. If the average person were to read it, he would probably develop a response along the lines of how Scott Turow, author of “The Paper Chase,” had to reading cases as a law student: he felt it was like trying to stir concrete with his eyelashes.

The great bulk of the Memorandum will be a very dry argument over the issue of standing. Does Philip Berg have a claim that is sufficiently differentiated from the claim of any other person to warrant being allowed to bring this claim?

Then the Supreme Court will respond. Sometime after the Court received the various Memoranda from the various parties, and each of the nine justices ha considered the Memoranda, the justices will enter their private conference room. Under the direction of Chief Justice John Roberts, they will consider every petition for a writ of certiorari, and they will probably have more than 100 to go over. Most will get only cursory discussion. The justice will handle them about the way a tried, jaded personnel manager handles bad resumes. Chief Justice Roberts will read off the number and ask for discussion. If there is none, the case is marked for denial, and the justice move on.

If there is discussion, every justice is free to join, and eventually the Chief Justice will call for a vote. If four of the nine justices decide that the case should be heard, then the writ of certiorari will issue, and the case will be set for written briefing and oral argument. If there are not four justices in favor of hearing the case, the writ will be denied.

As mentioned, the odds against Berg are extreme. Standing is a well-established doctrine. The lower courts appear to have considered the issue thoroughly and thoughtfully, and because standing is the only issue before the Court, it will be a huge and unexpected in for Berg if he gets a writ of certiorari.

If he does, even then, it will not mean that Obama and company must produce anything. It will mean that the Supreme Court has agreed to hear full arguments on the subject of Berg's standing. But for the moment, assume that this did happen. If the Supreme Court heard Berg's case in full, and if a majority of the justices ruled that he did have standing, would the Supreme Court then order Obama to produce the birth certificate? No. It would merely rule that the trial court was wrong, and it would send the entire case back to the trial curt with instructions to pick things up where they were and continue. Obama would then respond to the Requests for Admission; the trial court would consider arguments over what should Obama have to produce, and the whole matter would go on.

All of that is unlikely, because the Supreme Court is downright stingy abut granting writs of certiorari. In all probability, Berg's case, like thousands of others, will end in the Supreme Court with a terse, impersonal notice: “Petition for Writ of Certiorari denied.”

In some ways, that will be unfortunate, because it will mean a case that has aroused a great deal of emotional interest will end on a technical ruling rather than a ruling on the merits.

However, there is already enough information available, and the issue on the merits is actually straight-forward enough that we can predict what a trial court would rule if the Supreme Court were to hear this case and send it back to a trial court for further proceedings.

THE MERITS:

Any discussion of the merits of this dispute is muddled by one troublesome fact: this case has been tried in the media as much as any dispute since the original O. J. Simpson case. And the media treatment here has been even more driven by the emotional biases of the many media players involved. Things are being asserted as unassailable fact that are completely silly.

Consider one of the more publicized items. Various websites what asserted that Obama’s Kenyan grandmother has declared that Obama was born in a village in Kenya. Question: Is this valid evidence? No. If Berg were to get a full-blown trial, he would not be able to introduce this. Why not? Because the woman is being asked to give testimony (to say that something happened), and a person’s testimony is generally not valid evidence unless it is given under oath in circumstances in which the witness is subject to cross-examination. There is no indication that this testimony was given under oath, and there is no indication that anyone representing Obama was allowed to ask her any questions by way of cross-examination.

Further, what she said is far less than what is being trumpeted on the various websites. The woman does not speak English. She speaks one of the 62 tribal languages spoken in Kenya. And in translation, her statement is not a straight-forward declaration that Barack Obama was born in her village. The initial translation given by Philip Berg supporters was “Barack Obama is a son of this village.”

Question: Does “Barack Obama is a son of this village” mean “Barack Obama was born in this village”? Is that the only reasonable meaning that could be given to these words. Or is this statement sufficiently ambiguous that it could mean any number of things. For example, there is an organization in the United States called the Daughters of the American Revolution. Does anyone seriously believe that the women in that organization are the immediate descendants, the literal daughters, of persons who fought in the American Revolutionary War? In churches, Jesus Christ is sometimes referred to as the “son of David.” Does that mean that David is literally the father of Christ?

Could the woman’s statements mean that she believes that Barack Obama was born in her village in Kenya? Yes. But before a court will consider this as evidence, she will need to give her testimony under oath, subject to cross-examination, and because she does not speak English, her testimony will have to be translated by a court-certified, disinterested translator. Then, but only then, a court can consider it as valid evidence.

There is, however, evidence on which Berg v. Obama and other cases raising the same issue can be decided. To understand what the evidence is and how it could be evaluated, we need to return to something said near the outset: Because the people challenging Obama have taken their claims to court, it is reasonable to begin by considering how the courts handle this sort of claim. There are certain rules that are relevant to cases like the ones being brought against Barack Obama. One of those rules has to do with the “burden of production.” (Here I am borrowing material from earlier in this post, although this is not a true quotation/repetition of that material.)

As far as I know, there have been very few lawsuits challenging the eligibility of a major party candidate to run for the presidency. (There was a lawsuit challenging McCain’s eligibility, decided on the issue of standing in 2000.) So the potential consequences of these lawsuits are relatively unprecedented. On the other hand, there is a specific point at issue in these cases, that is much more mundane. That point is really rather simple and straightforward.

Stated in very general terms, the controlling legal question in this case is this: if a party to a lawsuit is required to prove something that the party can prove through the production of official documents held by official agencies of the State of Hawaii, what must that party produce?

Now, as with the question of standing, I would urge that everyone pause and consider this question, because it is a matter of grave importance.

There are several options here. Phil Berg (and others similarly situated) maintain that Barack Obama must produce the specific documents that Philip Berg has demanded. Barack Obama maintains that he must produce only the documents that he has already provided.

And Obama is wrong.

And Berg is wrong.

Because the courts work under a system of rules of law, neither party gets to charge into court and demand that the rules that it wants are the new rules for a lawsuit. (Consider for a moment how any reader would feel if he or she were sued and the opposing party got to set the rules for the lawsuit. Would that be fair? Would it be reasonable?)

So who gets to set the rules?

Who gets to set the rules if it is neither Obama nor Berg?

The answer, and this is the crux of this whole discussion –-:
The State of Hawaii gets to set the rules.

While that may seem odd, consider a few points: while this may be the most consequential case ever to turn on what an official state document claims, is it the first case ever to be decided on what an official state document claims? Certainly not. Every year thousands of people claiming to have been born in Hawaii apply for passports, submitting official copies of their birth certificates to the U.S. State Department to support the claim that they are U.S. citizens. By law, this has to be an official copy. In the same way, there are thousands of other transactions in which various people have to submit official copies of various documents from the State of Hawaii, for everything from the transfer of titles to automobiles to applications for business licenses.

This is not something where agencies like the State Department, insurance companies, or the courts invent new rules every time a document comes in claiming that it is an official copy of an official document. To make the process rational and workable, the State of Hawaii has adopted standards for what constitutes an “official document.” In the case of a birth certificate, Hawaii has adopted a law, passed by the Hawaii State Legislature, signed into law by the governor, and on the books for all to see. The two statutory sections that define what an official Hawaiian birth certificate is are Hawaii Revised Statutes 338-13(b) and 338-19.

Section 338-13(b) says:
Copies of the contents of any certificate on file in the department, certified by the department shall be considered for all purposes the same as the original, subject to the requirements of sections 338-16, 338-17, and 338-18.

Section 338-16 deals with procedure concerning late and altered birth certificates. There is no record in the Hawaii state records of Obama’s birth certificate having been filed more than one year after his birth, or of it having been officially altered.

Under section 338-17, a late or (officially) altered birth certificate offered as evidence has the evidentiary value that the court in which it is offered decides it shall have. Again, there is no suggestion that this law applies to Obama’s cases.

Section 338-18 is important to this case. It defines who has a right to get an official birth certificate from the State of Hawaii. Notably, it’s a very exclusive list. Basically, it is limited to people who have a direct financial stake in the affairs of the individual. Notably, a political stake does not qualify.

Finally section 338-19 reads:
§ 338-19. Photostatic or typewritten copies of records.
The department of health is authorized to prepare typewritten, photostatic, or microphotographic copies of any records and files in its office, which by reason of age, usage, or otherwise are in such condition that they can no longer be conveniently consulted or used without danger of serious injury or destruction thereof, and to certify to the correctness of such copies. The typewritten, photostatic, or microphotographic copies shall be competent evidence in all courts of the State with like force and effect as the original.

What’s all that mean? It means that the Department of Health is not required to produce a true exact duplicate of the 1961 data. There have been complaints among those alleging fraud that the Certification of Live Birth that the Obama camp has posted clearly looks like something done by a laser printer rather than the sort of typewriter that would have been used in 1961. This statute says “that’s fine.” Birth certificate is still an official birth certificate no matter what sort of device produced it, so long as it has the data on it, so those allegations of forgery are completely baseless.

Now, what does all of this mean? It mean that according to the State of Hawaii, whose rules control in this case, that the Certification of Live Birth posted on the Internet by the Obama people is a legally sufficient document.

Can a court order that the State of Hawaii produce the “original, original, original” birth certificate that Philip Berg and company insist is the only real proof that they will accept? Legally, no. Not unless they can prove that the Health Department’s copy as posted on the Internet is somehow bogus.

On that point, given the sheer number of requests, the State of Hawaii has pre-empted the courts. The State of Hawaii was not legally required to respond to all of the ballyhoo this issue has raised. Legally, it could have said, “Go away” and nobody would have had any right to make it go farther.

The State of Hawaii did not do that. In late October, the Hawaii State Health Director personally examined the original birth certificate in an effort to address numerous requests for the document. The Health Director, Chiyome Fukino, said she and the vital statistics registrar viewed and verified Obama's birth certificate. Further, they verified that this birth certificate has been handled like every other birth certificate in the normal order of business. That means that the State of Hawaii has vouched for the total veracity of the certificate as posted by the Obama camp.

And what of all the claims that the posted Obama certificate is a forgery? Well, the State of Hawaii, which has the un-forged original, says that the version that Obama has posted is real.

But what about . . . ?
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I’ve been trying to figure out some very compelling argument about this. My view is that the legal system will work through this case on December 5, when the justices of the Supreme Court will meet in conference, and they will get to Berg v. Obama, and they will rule that this case does not warrant inclusion on the Court’s busy calendar.

Will that silence the doubters? I do not believe it will. I believe that many will continue to cry out that Obama is not qualified to be President because he has not proven to THEIR satisfaction that he was born in Hawaii.

What can I say to them? Well, I suppose I can try this: How do you think the Apostle Thomas felt, touching Jesus’s wrists and side, when Jesus chided him with, “Oh, ye of little faith”?