DONOTCHANGE SCOTUS Tells Obama To Produce Birth Certificate
Lawyer Philip Berg’s lawsuit questioning Barack Obama’s “natural born” status has entered a do-or-die phase after the Supreme Court has ordered the president-elect to produce his birth certificate by December 1st.

Berg, who appealed his case of America’s highest court, was told by Justice David Souter’s Clerk that his petition for an injunction to stay the November 4th election was denied. The Clerk also required the defendants (Obama, the DNC, and FEC) to respond to the Writ of Certiorari by December 1. At that time, Obama must present an authentic birth certificate to the Court, which has been sealed by Hawaii governor Linda Lingle. Berg will get to respond afterwards.

Failure to do that will surely inspire the skepticism of the Justices in Obama, who are not used to being defied. The Court will have to decide what to do about a president-elect who refuses to prove his natural-born citizenship.

“I can see a unanimous Court (en banc) decertifying the election if Obama refuses to produce his birth certificate,” says attorney and writer Raymond S. Kraft. “They cannot do otherwise without abandoning all credibility as guardians of the Constitution. Even the most liberal justices, however loathe they may to do this, still consider themselves guardians of the Constitution. The Court is very jealous of its power - even over presidents, even over presidents-elect.”

Obama’s own campaign website has stated the president-elect was a Kenyan citizen until 1982. Audio of Obama’s Kenyan grandmother saying he was born in Kenya has recently surfaced.

On December 13, the Electoral College meets to casts its votes. If it has been determined that Mr. Obama is an illegal alien and therefore ineligible to become President of the United States, the Electors will be duty-bound to honor the Constitution.

By NewsGuy November 9th, 2008
Filed under: Defeat Obama Central
Article tags: birth certificate, natural born lawsuit, Obama, SCOTUS

November 9th, 2008 - 5:50 pm The Supremes have issued an order because they want that birth certificate as part of their response to the writ of certiorari. If they don’t get it, then cert might well be granted, and *then* it would go to a hearing.

And they don’t have to decertify the entire election. They might, however, dictate that the Electoral Collegians cannot mark any of their ballots for Barack Obama and must mark their ballots for someone else as President. And this would pretty much “unbind” them from having to vote for the named candidate on the November ballot.

I’m not saying that John McCain would win by default. I am saying that this would create quite an interesting situation, to be sure.

Anonymous
November 9th, 2008 - 5:55 pm In light of Obama’s refusal to provide his birth certificate to the court in answer to Berg’s lawsuit; if it turns out that Obama is not a natural born citizen as defined by the constitution, then one can only conclude that his intention all along was to create a constitutional crisis, forcing the Supreme Court to decide between overturning Section I Article II of the constitution, or unseating a popularly elected President - either of which would undermine the very fabric of our constitutional form of government.

If he’s not a natural born citizen and they overturn Section I Article II, half the country will revolt because the SCOTUS ignored the constitution.

If he’s not a natural born citizen and they unseat him according to the constitution, half the country will revolt because the man they chose as President will be removed by the courts.

That is a no-win situation, and reeks of totalitarian divide-and-conquer.

I pray, quite earnestly, that Barack Hussein Obama is indeed a natural born citizen of the United States of America, and that he has the documentation to prove it.

http://therightperspective.com/wordpress/?p=311

At this point, Supreme Court Justice David Souter’s Clerk informed Philip J. Berg, the lawyer who brought the case against Obama, that his petition for an injunction to stay the November 4th election was denied, but the Clerk also required the defendants to respond to the Writ of Certiorari (which requires the concurrence of four Justices) by December 1. At that time, Mr. Obama must present to the Court an authentic birth certificate, after which Mr. Berg will respond.

If Obama fails to do that, it is sure to inspire the skepticism of the Justices, who are unaccustomed to being defied. They will have to decide what to do about a president-elect who refuses to prove his natural-born citizenship.

“I can see a unanimous Court (en banc) decertifying the election if Obama refuses to produce his birth certificate,” says Raymond S. Kraft, an attorney and writer. “They cannot do otherwise without abandoning all credibility as guardians of the Constitution. Even the most liberal justices, however loathe they may to do this, still consider themselves guardians of the Constitution. The Court is very jealous of its power - even over presidents, even over presidents-elect.”

Also remember that on December 13, the Electoral College meets to casts its votes. If it has been determined that Mr. Obama is an illegal alien and therefore ineligible to become President of the United States, the Electors will be duty-bound to honor the Constitution.
[link to thevalleytruth.wordpress.com]

Virginia court has ruled against already but they haven’t concluded he was born in Hawaii. The birth is just registered in Hawaii days after his birth.
[link to www.freerepublic.com]
“TPTB will help him out. He’ll produce (actually, the tptb will produce) a birth certificate.”

“Yes, they very well might do this. It is no problem for them to do this and they have, no doubt already begun to get it done. How the people in Kenya would feel about this is a foreign affairs concern, but you know they would call it a lie.

“If he’s not a natural born citizen and they unseat him according to the CONSTITUTION, half the country will revolt because the man they chose as President will be removed by the courts.”

The courts shouldn’t be blamed for this…not their fault, it’s the law.

Barry probably isn’t sleeping well tonight.”

Time will tell what happens!

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9 Responses to “Where’s the Birth Certificate? Supreme Court Orders Obama to Produce”
 

You’re right, McCain wasn’t eligible to be POTUS either! He certainly wasn’t MY first choice for the Republican ticket! He won the nomination because of Independents and fraudulent Democrat votes (who illegally registered Republican in other, nearby states).
So neither Obama nor McCain can be POTUS!
Now, you might be thinking, Fine, Biden becomes President. But that begs the question, what did Biden know and when did he know it? Howard Dean too. All of them will be brought up on charges of defrauding the People of the United States.
And since it turns out Obama is an illegal alien and probably a foreign Radical Islamic agent, and he just received a National Security briefing, he will by necessity be held incommunicado in Guantamano Bay! Probably forever.

Dan Clamage wrote on November 11th, 2008 at 11:23 am

 

[…] Certificate? Supreme Court Orders Obama to Produce November 11, 2008 — budsimmons Where’s the Birth Certificate? Supreme Court Orders Obama to Produce in Election […]

 

If Barack Obamas is not born in the United States, He should not become President. The Constitution must be uphelded. Period. The End.
Carl Franklin

Carl Franklin wrote on November 12th, 2008 at 2:02 pm

 

I cannot believe that the DNC allowed this to go this far. It would have been simple enought for him to produce a original birth certificate. I have one from the state that I was born in. But….this is what the “lefties” do, win at any cost, vote early and vote offen. In fact……I believe that those that voted for him did not know or carred about what this man stood for. God help America if this man is not stoped in his tracks.

Gary FERKO wrote on November 16th, 2008 at 8:34 pm

 

person could be born to US citizen overseas and still be a natural bourn US citizen.
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=96719c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=96719c7755cb9010VgnVCM10000045f3d6a1RCRD
The Above US citizenship site states that most people become U.S. citizens in one of two ways:
By birth, either within the territory of the United States or to U.S. citizen parents, or
By Naturalization.
Obama is born to US citizen and is citizen not by Naturalization but by ‘natural birth’

Obama’s mother was US citizen. And that makes him Natural US citizen, he does not have to go through Naturalization process as Arnold Schwarzenegger (or me) had to go through. We have situation in my relative where parent is naturalized citizen whereas kid is born in India and is US citizen without going through naturalization. When One is Naturalized he is issued a Naturalization certification. Certificate of live birth is issued to a child of US citizen born on foreign land

Till he lives in other country and he is child he could be citizen of conuntry he lives in. After the age of 21 (any time) one can become US citizen, till then his citizenship was selected by his guardians.

Ashwin wrote on November 25th, 2008 at 12:57 pm

 

Especially when it comes to legal matters, the quip about a little bit of knowledge is a dangerous thing is sadly true.

Folks, this whole claim is a dead horse. It has no basis. It is a loser.

Now I am certain that many of those who started reading this comment have already written me off as a quisling, brain-addled, treasonous, liberal, S.O.B., and worse, but if you will bear with me, I will explain, and I will try to make this relatively easy to understand.

One of the first questions that must be considered in this question is “what rule controls the case?” Philip Berg contends that HE gets to decide what rule controls the case, and he insist that whatever evidence Barack Obama has offered is not enough. On the other hand, Barack Obama, if left to his own devices, would undoubtedly insist that HE gets to decide what rule controls the case, and he would insist that whatever evidence he has offered is quite enough.

Legally, however, neither Berg nor Obama gets to decide this issue. The court gets to decide it. The court, particularly a federal court, does not just get to go in an announced that whatever rule it wants will control. Federal judges may be powerful, but they do not have that kind of power.

The rule that the court followed is that the state whose documents are at issue gets to set the rule that controls the case: Hawaii. This is hardly the first time that Hawaiian officials have needed to produce an official version of an official document, be it a birth certificate, death certificate, marriage license, car title, certificate of insurance, or any number of other official documents. Hawaiian officials have done this thousands, probably millions of times.

I can almost hear the response from Berg and company: “Yes, but never has so much turned on the veracity of an official document.”

Arguably true, but does that mean that there should be a different rule for “important” documents? Of course, this lays open a whole range of problems: just how “important” does a case have to be before it is “important”? Who decides whether a case is important enough to be “important”? What if one party says a case is important enough and the other party disagrees?

The courts have avoided this problem by relying on a simple rule: the procedure that the state of Hawaii uses is the proper procedure.

And what is the proper procedure?

Under the laws of the state of Hawaii, a person claiming United States citizenship based on birth in Hawaii must produce proper documentation. The proper documentation required by Hawaii state law is a certified true copy of the “Certification of Live Birth.” The certification takes the form of an affidavit by the appropriate officer in charge of the documents stating that the certified copy is indeed a complete and accurate copy of the original document. For birth certificates, the appropriate state official is the State Health Director.

Recently, these issues were all brought up in a lawsuit in Virginia, where Obama, by and through his attorneys, produced the very documents that he has posted for months: a Certification of Live Birth and an affidavit from the Hawaii State Health Director stating that he had examined the Certification of Live Birth and found that it was identical to the “vault” version that Philip Berg and company have repeatedly demanded, and found that the Certification of Live Birth was complete and accurate.

Notably, on the Barrack Obama Certification of Live Birth, there is a statement which the Berg camp would like to ignore: “This copy serves as prima facie evidence of the fact of birth in any court proceeding. HRS 338-13(b), 338-19.”

Notably, the Certification of Live Birth is quite emphatic about the details of the birth, stating that Barack Obama II was born in Honolulu, in the County of Honolulu, on the Island of Oahu.

This is the same evidence that Obama’s attorneys have presented in the various suits, a Certification of Live Birth together with the affidavit of the Hawaii State Health Director certifying that the Certification is complete and accurate.

As the court in Virgina recently ruled, a Certification of live Birth is valid for all citizenship purposes. In other words, under Hawaii law, it is enough.

The court specifically noted that if Obama had not been born in Honolulu, Hawaii, on the island of Oahu, the “place of birth” line on the Certification of Live Birth would reflect that fact.

Of course, even certified copies of official state documents can be wrong. It is possible. But then the court turned to the evidence that has been offered saying that the Certification of Live Birth is a forgery. The Virginia court reviewed the evidence that the plaintiffs have presented and found it simply was not enough to bring the authenticity of the Hawaiian documents into question. In effect, the court dismissed the claims against the birth certificate as completely unsubstantiated internet rumors. These claims were found to be “wholly unpersuasive.”

Is any of this going to get Philip Berg to relent in his insistence that Barack Obama is perpetrating a massive fraud by getting himself elected to an office for which he is not and cannot be qualified? I doubt it.

However, Mr. Berg seems to be in an awkward position. Mr. Berg is a lawyer. Mr. Berg brought suit in the United States District Court in Pennsylvania. By doing so, Mr. Berg agreed to conduct his lawsuit according to the rules and procedures of that court. As Berg’s own people point out, it is unfair to try to change the rules in the middle of a game.

One of the rules of law that Mr. Berg agreed to by bringing his lawsuit is that he agreed to be bound by Hawaiian law concerning what is a valid birth certificate. The court in Virginia, in a case on the same issue, has ruled that under Hawaiian law, Barack Obama has done quite enough.

Isn’t it time for Philip Berg to admit that he has lost?

westsidedavid wrote on November 27th, 2008 at 11:54 pm

 

Can you please provide link to support your claim that the Supreme Court ordered President-elect Obama to produce his birth certificate? Otherwise you are full of shit, because I have searched and see no evidence of such an order on the Court’s Web site.

Nance Brooks wrote on November 28th, 2008 at 11:20 pm

 

Could their be a better Rockefeller, CFR, CIA, military industrial complex, zionist main stream media shill than Obama?

The first time “Barry” crosses them, it’s out with the records and oppsi, Barry is an illegal citizen.

I have seen enough of Barry’s change with a mossad operative as Head of White House Staff, and Hitlery coming in as Sec. of State, to know the more things change, the more they stay the same.

You know the Patriots going to water the tree of Liberty with blood if this illegal alien poser takes the oath for President of the United States.

beijingyank wrote on November 30th, 2008 at 11:08 am

 

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”?

westsidedavid wrote on December 2nd, 2008 at 12:33 pm

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