Keyes/Barnett v Obama – Doc 77 – Court orders Orly's Opposition to Motion to Dismiss Sealed. Refile by Oct 2 September 30, 2009
Posted by Exploring the Natural Born Citizen Clause in Keyes v Obama, Keyes v Obama (Docs), Lawyers, Legal Cases, Orly Taitz.comments closed
Orly, Orly… In her opposition to motion to dismiss, Orly Taitz managed to file a document with unredacted personal information. Philip Berg filed an ex-parte motion and the Judge granted the motion. Orly has until friday to refile… Pwned
09/30/2009 77 MINUTES OF IN CHAMBERS ORDER held before Judge David O. Carter: On 09/28/09, Court received letter from attorney Philip J Berg requesting Exhibit 7 to Response in Opposition to Motion 69 be sealed as it contains personal identifying information(see Order for specifics). Court orders Plaintiffs Opposition to Motion to Dismiss Case (Doc 69) sealed. Plaintiffs shall refile redacted copy of entire Opposition to Motion to Dismiss, including all exhibits by Friday, October 2, 5 p.m. (ln) (Entered: 09/30/2009)
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 09-0082 DOC (ANx)
Date: September 30, 2009
Title: Captain Pamela Barnett, et al. v. Barack H. Obama, et al.
DOCKET ENTRY
PROCEEDING (IN CHAMBERS): ORDER SEALING DOCUMENT REQUIRING PLAINTIFFS TO REFILE OPPOSITION TO MOTION TO DISMISS TO COMPLY WITH FED. R. CIV. P. 5.2
On September 28,2009, the Court received a letter from attorney Philip J. Berg requesting that Exhibit 7 (Dossier #6) of Plaintiffs’ Opposition to the Motion to Dismiss be sealed because it does not comply with FED. R. CIV. P. 5.2. The letter states that Exhibit 7 contains personal identifying information of Lisa Liberi and her husband.
Full and Complete Jurisdiction September 30, 2009
Posted by Exploring the Natural Born Citizen Clause in 14th Amendment, Citizenship, Constitutional Terms, Subject to the jurisdiction thereof.comments closed
Some have argued that the discussion during the 14th Amendment or the Civil Right’s act suggested that jurisdiction over the child had to be “full and complete”. To truly understand the meaning of these terms, one has to take but a look at Justice Marshall in Schooner Exchange v. M’Faddon, 11 U.S. 116 (1812)
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction derived from an external source would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.
Google Warning At Orly's site September 30, 2009
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Safe Browsing
Diagnostic page for orlytaitzesq.com
What is the current listing status for orlytaitzesq.com?
Site is listed as suspicious – visiting this web site may harm your computer.
Part of this site was listed for suspicious activity 3 time(s) over the past 90 days.
What happened when Google visited this site?
Of the 269 pages we tested on the site over the past 90 days, 33 page(s) resulted in malicious software being downloaded and installed without user consent. The last time Google visited this site was on 2009-09-30, and the last time suspicious content was found on this site was on 2009-09-30.Malicious software includes 37 scripting exploit(s). Successful infection resulted in an average of 2 new process(es) on the target machine.
Malicious software is hosted on 5 domain(s), including cybercrime-protection.cn/, mcafee-malware.com/, security-alerts.cn/.
2 domain(s) appear to be functioning as intermediaries for distributing malware to visitors of this site, including security-alerts.cn/, protection-malware.cn/.
This site was hosted on 1 network(s) including AS6245 (NETWORK).
1816 – An Act Relative to evidence in cases of naturalization September 30, 2009
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CHAP XXXII
An Act Relative to evidence in cases of naturalization
Approved March 22 1816 US Statutes at Large Vol Ill pp 258 259
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled That the certificate of report and registry required as evidence of the time of arrival in the United States according to the second section of the act of the fourteenth of April one thousand eight hundred and two entitled An act to establish an uniform rule of naturalization and to repeal the act heretofore passed on this subject and also a certificate from the proper clerk or prothouotary of the declaration of intention made before a court of record and required as the first condition according to the first section of said act shall be exhibited by every alien on his application to be admitted a citizen of the United States in pursuance of said act who shall have arrived within the limits and under the jurisdiction of the United States since the eighteenth day of June one thousand eight hundred and twelve and shall each be recited at full length in the record of the court admitting such alien otherwise he shall not be deemed to have complied with the conditions requisite for becoming a citizen of the United States and any pretended admission of an alien who shall have arrived within the limits and under the jurisdiction of the United States since the said eighteenth day of June one thousand eight hundred and twelve to be a citizen after the promulgation of this act without such recital of each certificate at full length shall be of no validity or effect under the act aforesaid
SEC 2 Provided and be it enacted That nothing herein contained shall be construed to exclude from admission to citizenship any free white person who was residing within the limits and under the jurisdiction of the United States at any time between the eighteenth day of June one thousand seven hundred and ninety eight and the fourteenth day of April one thousand eight hundred and two and who having continued to reside therein without having made any declaration of intention before a court of record as aforesaid may be entitled to become a citizen of the United States according to the act of the twenty sixth of March one thousand eight hundred and four entitled An act in addition to an act entitled An act to establish an uniform rule of naturalization and to repeal the act heretofore passed on that subject Whenever any person without a certificate of such declaration of intention as aforesaid shall make application to be admitted a citizen of the United States it shall be proved to the satisfaction of the court vthat the applicant was residing within the limits and under the jurisdiction of the United States before the fourteenth day of April one thousand eight hundred and two and has continued to reside within the same or he shall not be so admitted And the residence of the applicant within the limits and under the jurisdiction of the United States for at least five years immediately preceding the time of such application shall be proved by the oath or affirmation of citizens of the United States which citizens shall be named in the record as witnesses And such continued residence within the limits and under the jurisdiction of the United States when satisfactorily proved and the place or places where the applicant has resided for at least five years as aforesaid shall be stated and set forth together with the names of such citizens ill the record of the court admitting the applicant otherwise the same shall not entitle him to be considered and deemed a citizen of the United States
1813 – An Act Supplementary to the acts heretofore passed on the subject of an uniform rule of naturalization September 30, 2009
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CHAP XXXVI
An Act Supplementary to the acts heretofore passed on the subject of an uniform rule of naturalization
Approved July 30 1813 US Statutes at Large Vol Ill p 53
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled That persons resident within the United Stntes or the territories thereof on the eighteenth day of June in the year one thousand eight hundred and twelve who had before that day made a declaration according to law of their intentions to become citizens of the United States or who by the existing laws of the United States were on that day entitled to become citizens without making such declaration may be admitted to become citizens thereof notwithstanding they shall be alien enemies at the times and in the manner prescribed by the laws heretofore passed on that subject Provided That nothing herein contained shall be taken or construed to interfere with or prevent the apprehension and removal agreeably to law of any alien enemy at any time previous to the actual naturalization of such alien
1813 – An Act For the regulation of seamen on board the public and private vessels of the United States September 30, 2009
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CHAP XLII
An Act For the regulation of seamen on board the public and private vessels of the United States
Approved March 3 1813 US Statutes at Large vol 2 p 811
SEC 12 And be it further enacted That no person who shall arrive in the United States from and after the time when this act shall take effect shall be admitted to become a citizen of the United States who shall not for the continued term of five years next preceding his admission as aforesaid have resided within the United States without being at any time during the said five years out of the territory of the United States
SEC 13 And be it further enacted That if any person shall falsely make forge or counterfeit or cause or procure to be falsely made forged or counterfeited any certificate or evidence of citizenship referred to in this act or shall pass utter or use as true any false forged or counterfeited certificate of citizenship or shall make sale or dispose of any certificate of citizenship to any person other than the person for whom it was originally issued and to whom it may of right belong every such person shall be deemed and adjudged guilty of felony and on being thereof convicted by due course of law shall be sentenced to be imprisoned and kept to hard labour for a period not less than three or more than five years or be fined in a sum not less than five hundred dollars nor more than one thousand dollars at the discretion of the court taking cognizance thereof
1804 – An Act In addition to an act intituled An Act to establish an uniform rule of naturalization and to repeal tbe acts heretofore passed on that subject September 30, 2009
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CHAP XLVII
An Act In addition to an act intituled An Act to establish an uniform rule of naturalization and to repeal tbe acts heretofore passed on that subject
Approved March 20 1804 US Statutes at Large vol 2 pp 292 293
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled That any alien being a free white person who was residing within the limits and under the jurisdiction of the United States at any time between the eighteenth day of June one thousand seven hundred and ninety eight and the fourteenth day of April one thousand eight hundred and two and who has continued to reside within the same may be admitted to become a citizen of the United States without a compliance with the first condition specified in the first section of the act intituled An act to establish an uniform rule of naturalization and to repeal the acts heretofore passed on that subject
SEC 2 And be it further enacted That when any alien who shall have complied with the first condition specified in the first section of the said original act and who shall have pursued the directions prescribed in the second section of the said act may die before he is actually naturalized the widow and the children of such alien shall be considered as citizens of the United States and shall be entitled to all rights and privileges as such upon taking the oaths prescribed by law
1802 – An Act To establish an uniform rule of Naturalization and to repeal the acts heretofore passed on that subject September 30, 2009
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CHAP XXVIII
An Act To establish an uniform rule of Naturalization and to repeal the acts heretofore passed on that subject
Approved April 14 1802 US Statutes at Large Vol 2 pp 153 155
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled That any alien being a free white person may be admitted to become a citizen of the United States or any of them on the following conditions and not otherwise
First That he shall have declared on oath or affirmation before the supreme superior district or circuit court of some one of the states or of the territorial districts of the United States or a circuit or district court of the United States three years at least before his admission that it was bona fide his intention to become a citizen of the United States and to renounce for ever all allegiance and fidelity to any foreign prince potentate state or sovereignty whatever and particularly by name the prince potentate state or sovereignty whereof such alien may at the time be a citizen or subject
1798 – An Act Supplementary to and to amend the act intituled An act to establish an uniform rule of naturalization and to repeal the act heretofore passed on that subject September 30, 2009
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CHAP LIV
An Act Supplementary to and to amend the act intituled An act to establish an uniform rule of naturalization and to repeal the act heretofore passed on that subject
Approved June 18 1798 US Statutes at Large Vol I pp 566 569
SECTION 1 Be it enacted 6y the Senate and House of Representatives of the United States of America in Congress assembled That no alien shall be admitted to become a citizen of the United States or of any state unless in the manner prescribed by the act intituled An act to establish an uniform rule of naturalization and to repeal the act heretofore passed on that subject he shall have declared his intention to become a citizen of the United States five years at least before his admission and shall at the time of his application to be admitted declare and prove to the satisfaction of the court having jurisdiction in the case that he has resided within the United States fourteen years at least and within the state or territory where or for which such court is at the time held five years at least besides conforming to the other declarations renunciations and proofs by the said act required anything therein to the contrary hereof notwithstanding Provided that any alien who was residing within the limits and under the jurisdiction of the United States before the twenty ninth day of January one thousand seven hundred and ninety five may within one year after the passing of this act and any alien who shall have made the declaration of his intention to become a citizen of the United Sates in conformity to the provisions of the act intituled An act to establish an uniform rule of naturalization and to repeal the act heretofore passed on that subject may within four years after having made the declaration aforesaid be admitted to become a citizen in the manner prescribed by the said act upon his making proof that he has resided five years at least within the limits and under the jurisdiction of the United States And provided also that no alien who shall be a native citizen denizen or subject of any nation or state with whom the United States shall be at war at the time of his application shall be then admitted to become a citizen of the United States
1795 – An Act To establish an uniform rule of naturalization and to repeal the act heretofore passed on that subject September 30, 2009
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CHAP XX
An Act To establish an uniform rule of naturalization and to repeal the act heretofore passed on that subject
repealed Approved January 29 1795 US Statutes at Large Vol I pp 414 415
For carrying into complete effect the power given by the constitution to establish an uniform rule of naturalization throughout the United States
SECTION 1 Be it enacted by the Senate and Home of Representatives of the United States of America in Congress assembled That any alien being a free white person may be admitted to become a citizen of the United States or any of them on the following conditions and not otherwise.
First He shall have declared on oath or affirmation before the supreme superior district or circuit court of some one of the states or of the territories northwest or south of the river Ohio or a circuit or district court of the United States three years at least before his admission that it was bonn fide his intention to become a citizen of the United States and to renounce forever all allegiance and fidelity to any foreign prince potentate state or sovereignty whatever and particularly by name the prince potentate state or sovereignty whereof such alien may at the time be a citizen or subject
Secondly He shall at the time of his application to be admitted declare on oath or affirmation before some one of the courts aforesaid that he has resided within the United States five years at least and within the state or territory where such court is at the time held one year at least that he will support the constitution of the United States and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince potentate state or sovereignty whatever and particularly by name the prince potentate state or sovereignty whereof he was before a citizen or subject which proceedings shall be recorded by the clerk of the court
Thirdly The court admitting such alien shall be satisfied that he has resided within the limits and under the jurisdiction of the United States five years and it shall further appear to their satisfaction that during that time he has behaved as a man of a good moral character attached to the principles of the constitution of the United States and well disposed to the good order and happiness of the same
Fourthly In case the alien applying to be admitted to citizenship shall have borne any hereditary title or been of any of the orders of nobility in the kingdom or state from which he came he shall in addition to the above requisites make an express renunciation of his title or order of nobility in the court to which his application shall be made which renunciation shall be recorded in the said court
SEC 2 Provided always and be it further enacted That any alien now residing within the limits and under the jurisdiction of the United States may be admitted to become a citizen on his declaring on oath or affirmation in some one of the courts aforesaid that he has resided two years at least within and under the jurisdiction of the same and one year at least within the state or territory where such court is at the time held that he will support the constitution of the United States and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince potentate state or sovereignty whatever and particularly by name thc prince potentate stnte or sovereignty whereof he was before a citizen or subject and moreover on its appearing to the satisfaction of the court that during the said term of two years he has behaved as a man of good moral character attached to the constitution of the United States and well disposed to the good order and happiness of tho same and where the alien applying for admission to citizenship shall have borne any hereditary title or been of any of the orders of nobility in the kingdom or state from which he came on his moreover making in the court an express renunciation of his title or order of nobility before he shall be entitled to such admission all of which proceedings required in this proviso to be performed in the court shall be recorded by the clerk thereof
SEC 3 And be it further enacted That the children of persons duly naturalized dwelling within the United States and being under the age of twenty one years at the time of such naturalization and the children of citizens of the United States born out of the limits and jurisdiction of the United States shall be considered as citizens of the United States Provided That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States Provided also That no person heretofore proscribed by any state or who has been legally convicted of having joined the army of Great Britain during the late war shall be admitted a citizen as aforesaid without the consent of the legislature of the state in which such person was proscribed
SEC 4 And be it further enacted That the act intituled An act to establish an uniform rule of naturalization passed the twenty sixth day of March one thousand seven hundred and ninety be and the same is hereby
1790 Act To establish an uniform rule of naturalization September 30, 2009
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CHAP III
An Act To establish an uniform rule of naturalization
Approved March 26 1790 US Statutes at Large Vol I pp 103 104 (This act was repealed by an act passed January 29 1795 chap 20)
SECTION 1
Be it enacted oy the Senate and House of Representatives of the United States of America in Congress assembled That any alien being a free white person who shall have resided within the limits and under the jurisdiction of the United States for the term of two years may be admitted to become a citizen thereof on application to any common law court of record in any one of the states wherein he shall have resided for the term of one year at least and making proof to the satisfaction of such court that he is a person of good character and taking the oath or affirmation prescribed by law to support the constitution of the United States which oath or affirmation such court shall administer and the clerk of such court shall record such application and the proceedings thereon and thereupon such person shall be considered as a citizen of the United States. And the children of such persons so naturalized dwelling within the United States being under the age of twenty one years at the time of such naturalization shall also be considered as citizens of the United States. And the children of citizens of the United States that may be born beyond sea or out of the limits of the United States shall be considered as natural born citizens. Provided That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States. Provided also. That no person heretofore proscribed by any state shall be admitted a citizen as aforesaid except by an act of the legislature of the state in which such person was proscribed
Judge Land – Let the smears begin September 29, 2009
Posted by Exploring the Natural Born Citizen Clause in Lawyers, Legal Cases, Orly Taitz, Rhodes v McDonald.comments closed
When legal arguments fail, what else is one to do? Orly explains
Would vast investments of Judge Land suffer, if Obama is removed from office?
His reports filed for the years 2003-7 list investments in many of the largest companies backing Barack Obama, such as Microsoft and Comcast.
In his 2004 report he also lists and investment with Time Warner, Inc..
…
It is difficult to understand how, with so many varied investments, Judge Land has managed to avoid conflicts of interest in the numerous cases he has heard. Moreover, seeing that many of these companies would be impacted if the laws signed by Barack Hussein Obama’s were declared null and void, on account of his lack of eligibility for office, it also seems reasonable to ask why Judge Land did not recuse himself in the case Rhodes vs. Mac Donald.
Is Orly going to ask Judge Land to retroactively remove himself from the case?
Barack Obama- State of the Nation Address (Hip-Hop Interpretation) September 28, 2009
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Vattel: Natives and Indigenous September 28, 2009
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A well-known exposition of natural law theory with which the Founders were undoubtedly familiar is Samuel Pufendorf, The Whole Duty of Man According to the Laws of Nature (William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003) (1691). The following excerpt is squarely on point to our story:
A State or Government being thus constituted, the Party on whom the Supreme Power is conferr’d, either as it is a single Person, or a Council consisting of select Persons, or of All in General, is called a MONARCHY, an ARISTOCRACY, or a FREE STATE; the rest are looked upon as Subjects or Citizens, the Word being taken in the most comprehensive Sense: Although, in Strictness of Speech, some call only those Citizens, who first met and agreed together in the forming of the said Society, or else such who succeeded in their Place, to wit, House-holders or Masters of Families.
Moreover, Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges; Or else, Adscititious; that is, such as come from Foreign Parts.Of the first Sort, are either those who at first were present and concerned in the forming of the said Society, or their Descendants, who we call Indigenes, or Natives. Of the other Sort are those who come from Foreign Parts in order to settle themselves there. As for those who come thither only to make a short Stay, although they are for that Time subject to the Laws of the Place: nevertheless, they are not looked upon as Citizens, but are called Strangers or Sojourners.”
Source: E Pluribus Unum: Well Maybe Not Everybody Towards A Re-Examination Of Birthright Citizenship by Gary Endelman
In other words, it seems likely that the term natives of indigenes as used by Vattel, who was surely influenced by Puffendorf referred to the original ‘founders’ and their descendents. A far more strict definition than natural born which even under Mario’s interpretations extend the right to run for presidency to anyone born to two US parents, while the above definition would restrict such only to the original founders and their direct descendents.
Furthermore
The Croatian nobility, in particular, occupied an important position among these latter. This nobility was also a member of the Sacra Corona and, by virtue of its noble rank, was directly Magyar1. Hungarian legal authorities have denned the admission of foreigners by saying that besides ” natives” (nativi), foreigners too (indigenae) received Hungarian ” citizenship ” (civitasy)
Source: Hungary in the eighteenth century, By Henrik Marczali
The Perfect Case September 28, 2009
Posted by Exploring the Natural Born Citizen Clause in Citizenship, Jus Soli, Natural Born.comments closed
From our friends at Politijab
I can envision the PERFECT case to address the issue of “natural born” citizen in the appropriate context -i.e., distinguishing between natural born and naturalized. The PERFECT case would have something like the following facts.
* * *
After a historically horrendous terrorist attack on the United States, an enemy fighter is captured in the region where the group responsible for the attack resides, during a battle between US soldiers and the enemy (identified as the group responsible for the attacks). This enemy fighter is designated as an “enemy combatant.”
He (or, to be precise, his (foreign) father) thereafter challenges his “enemy combatant” status on the grounds that he is a (natural born) citizen (i.e., a citizen by birth, rather than a naturalized citizen whose post-citizenship actions may “strip” him of his US citizenship). Because this captured enemy soldier is a (natural born) citizen, he argues, he is entitled to the Constitutional due process protections afforded US prisoners.
He is deemed a (natural born vs. naturalized) US Citizen because he was born here while his parents, two Saudi nationals, were in Louisiana on a work visa, which expired shortly after his birth, whereupon he returned to Saudi Arabia as a toddler (where he was a citizen by virtue of his parents’ citizenship) and never returned to the US.
* * *
I mean, how much more ‘perfect’ of a case/set-up can be imagined????? How many (US) Americans (typically more focused on outcome than analysis) would not support a decision finding that a foreign enemy fighter, who was captured while battling US troops, was not, in fact, a citizen because, e.g., neither of his parents were US citizens/both of his parents were foreign nationals; or because he (and/or they) were not subject to US jurisdiction; or because he was a dual citizen at birth who returned to his home country; or any other of a number of reasons ????
Keyes/Barnett v Obama – Doc 76 – Court Grants Request for Leave September 28, 2009
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Orly has until 5PM October 1st to file her sur-reply, not to exceed 10 pages. All will be ready for the October 5 dismissal. Smart move btw by Judge Carter…
09/28/2009 76 MINUTES (IN CHAMBERS): ORDER by Judge David O. Carter: REQUEST FOR LEAVE OF COURT TO FILE SUR-REPLY 75[RECAP] : The Court GRANTS Plaintiffs’ Motion and will give Plaintiffs leave of court to file a surreply not to exceed ten (10) pages to be filed by 5 p.m. on October 1, 2009. Plaintiffs’ courtesy copy of the sur-reply shall be delivered to the Court’s dropbox on the ninth floor of the Santa Ana courthouse by no later than noon on October 2, 2009. The Clerk shall serve this minute order on all parties to the action. (rla) (Entered: 09/28/2009)
Allen v Soetoro – New Filings September 28, 2009
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09/21/2009 10 Plaintiff’s Notice of Motion and Motion for Leave to File Amended Complaint by Kenneth L. Allen (BAC, ) (Entered: 09/23/2009)
09/21/2009 12 CERTIFICATE OF SERVICE by Kenneth L. Allen (BAC, ) (Entered: 09/23/2009)
09/23/2009 11 MOTION to Amend/Correct re: Amended Complaint by Kenneth L. Allen. (Attachments: # 1 Exhibit Amended Complaint)(BAC, ) (Entered: 09/23/2009)
Rhodes v McDonald – Motion to Witdraw Granted (with conditions) September 28, 2009
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09/28/2009 21 ORDER granting 20 Motion to Withdraw as Attorney with conditions (see order for explanation). Attorney Orly Taitz terminated. Ordered by Judge Clay D. Land on 09/28/2009 (esl) (Entered: 09/28/2009)O R D E RPlaintiff’s counsel filed a motion to withdraw as counsel for Plaintiff (Doc. 20). Plaintiff apparently does not object to such withdrawal. (See Doc. 18.) Accordingly, counsel’s motion to withdraw is granted with the following conditions. Counsel remains subject to the jurisdiction of this Court for purposes of the Court’s show cause sanctions order and related proceedings, and Plaintiff remains subject to the jurisdiction of this Court for purposes of the Court’s previous order casting the court costs upon Plaintiff.
The Court further notes that this order shall not be construed to authorize Plaintiff’s counsel to breach any attorney-client privilege that may exist due to counsel’s representation of Plaintiff. Moreover, the Court notifies counsel that in issuing its show cause sanctions order, the Court did not rely upon the letter sent by Plaintiff purporting to discharge counsel (Doc. 18), nor does the Court intend to rely upon that document in future proceedings regarding sanctions against Plaintiff’s counsel. Whether Plaintiff expressly authorized counsel to file the motion for reconsideration is irrelevant to the Court’s determination of whether the filing was legally frivolous.
IT IS SO ORDERED, this 28th day of September, 2009.
Leo and OIP Opinion Letter 97-08 September 28, 2009
Posted by Exploring the Natural Born Citizen Clause in HRS 338, Hawaii, OIP Op. Ltr., UIPA.comments closed
Leo
These are examples of the four basic responses available to a state agency. For example, an agency may not tell a person that the agency refuses to say whether they possess a certain record.
This very issue was discussed in OIP Opinion Letter 97-08, wherein a staff attorney for the Corporation Counsel was faced with a UIPA request concerning a legal memo. The staff attorney refused to acknowledge whether the legal memo existed by citing attorney client privilege.
From the actual opinion, the situation appears to be slightly different. The requester had asked access to a document and the response was that such a document would be covered by attorney client privilege. The OIP was then asked to determine if the document met the requirements or should be made public.
In this letter Deputy Volsztyniak stated, in response to your request for a memorandum regarding authorization to settle:
You requested a copy of the memorandum from Mr. Jencks to me authorizing me to settle. Please be advised that this is confidential and privileged information covered under the attorney-client privilege. This information is not required to be disclosed under Rule 503 of the Hawaii Rules of Evidence.
Based on this representation by Deputy Wolsztyniak, you then made a written request to the Office of Information Practices COIP”), dated February 22, 1997, for an opinion as to whether a memorandum from IMr. Jencks to Deputy Wolsztyniak is a public document.
The requestor appealed to the OIP and the staff attorney was then required to submit to an investigation by the OIP into whether the memo existed. The staff attorney had to cooperate with the OIP investigator. He admitted that the memo did not exist and the requestor was informed of that fact.
When an agency “denies” access to a government record, the denial has a very explicit effect in that it operates as a statutory admission by the agency that they do maintain (possess) the requested record.
The situation is very similar to the concept of ’standing’ in legal proceedings. Does the requester meet the requirements of someone to whom the records can be made available?
HRS 338 clearly outlines that unless the requester has a direct and tangible interest in the records, she lacks ’standing’.
This means that the DOH does not even have to determine if the records exist or not.
In the case described above (OIP Opinion Letter 97-08), the OIP requested access to the data to determine if the data (the letter) was covered by attorney client privilege or if it was a public document. In this case, the OIP does not even have to see the data for it to be able to make the determination as the records are clearly covered by HRS 338 and not public.
So the situation is simple, the DOH does not have to determine if the records even exist as the requester lacks standing for access to said data. In fact, the DOH would likely be able to argue that it does not have to admit or deny the existence of said data, because regardless of its existence, the requester has no direct and tangible interest. The OIP also can make the determination without knowing if the data exist or not, since the Hawaiian laws are clear.
Rhodes v McDonald – Orly learns to sign September 28, 2009
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All it takes is a /s/, Orly’s a ‘quick learner’. But since she is dropping her client, where is her ‘proof of service’ (see update) to Connie Rhodes?
09/28/2009 Notice of Error in Filing (related document: 19 Motion to Withdraw as Attorney filed by Connie Rhodes ). DOCUMENT IS NOT SIGNED AND MUST BE RE-FILED ONCE EXECUTED WITH AN “S/signature”. (esl) (Entered: 09/28/2009)
09/28/2009 20 MOTION to Withdraw as Attorney by Connie Rhodes filed by Orly Taitz.(Taitz, Orly) (Entered: 09/28/2009)
Update: Seems I predicted well
09/28/2009 TEXT ONLY Notice of Error in Filing (related document: 20 Motion to Withdraw as Attorney filed by Connie Rhodes ). SIGNED CERTIFICATE OF SERVICE IS MISSING FROM DOCUMENT. PLEASE E-FILE AN EXECUTED CERTIFICATE OF SERVICE AND LINK IT BACK TO DOCUMENT 20. Failure to include service on Plaintiff will result in another Notice of Error in Filing. (esl) (Entered: 09/28/2009)
