Further to yesterday’s hearing, when Dr. Orly Taitz, Esq.’s Reply to a Defense Opposition to the Georgia subpoena forms Taitz found on the Internet–(Mad Ol’ Orly is under the delusion she is putting President Obama on “trial” in Georgia on January 26, resulting in DISCOVERY)–was read into the record; her original Motion before the court was Denied from the Bench, Order to be written by Defense; and Amended Ex-Parte Motion (I really have no idea): Raicha explains at The Fogbow, some of what the Attorney-General’s office is complaining about:
Here is the full version of the “Ex Parte Amended Motion Reciprocal Subpoena Enforcement”. It is a prime example of what Ms. Nagamine means when she says the State must waste time trying to figure out what Taitz is asking for.
In this “motion”, it could be: 1) an Ex Parte application to hear a brand new motion, contained in this pleading, to enforce the Georgia subpoena. This reading of the document is supported by the “proposed order”, which does not contain language “shortening time” and moving the hearing, but merely states that the order to comply with the subpoena is granted. 2) an Ex Parte application to “shorten time” to hear the motion that was set for January 26th. This reading is supported by Taitz’ lengthy citation of the Hawaii rules for shortening time for a hearing.
Here is the order, on the Ex Parte document. The order specifically states that the court is treating this document as #2 and granting the request to shorten time to hear the motion originally set for January 26th.
Here is part of the original motion for “reciprocal enforcement” submitted by Taitz on December 29th. (No exhibit attached.) This would be the motion that the court was considering on January 13th. Because motions cannot be amended in Hawaii, as was explained to Taitz on November 30th, only the facts and arguments in this document were before the court on the 13th.
This document refers only to “HAW RCP 45(a) and HAW RCP 45 (d)(1)” as the law regarding issuing subpoenas in Hawaii. No other rule or statute was before the court on January 13th. Therefore, Judge Nishimura ruled against Taitz solely on the grounds that these rules did not support Taitz’ request.
The judge didn’t miss anything, but Taitz’ will certainly file a Motion for Reconsideration of Ex Parte Amended Motion Reciprocal Subpoena Enforcement”, which will be set in due course 18 days from now, requiring an Ex Parte Amended Motion to Expedite for Reconsideration of Ex Parte Amended Motion Reciprocal Subpoena Enforcement, all of which is allowable under OrlyLaw.
Here is Mike’s report of the January 13 hearing:
I arrived at the courtroom at about 1015. Looking into the courtroom, I saw that Orly was seated at the counsel table to the right side as you face the front of the courtroom, typing on a laptop. This is the same table that Orly has occupied at each hearing in this case. I also saw that Jeff LaFrance was seated at the table to the left, which is the one closer to the jury box in this courtroom. I did not see anyone else in the courtroom, and I had no particular interest in being alone in a room with those two people, so I sat on a bench in the hallway until just before the start time for the hearing.
Orly was wearing one of her “black lawyer suits”. I did not have the opportunity to observe her footwear. She appeared to be quite tired.
The case was called at 1035, as a “civil motion calendar add-on”.
Judge Nishimura began by stating the nature of the motion, and asked Orly to proceed.
Ms. Taitz began by apologizing. She said that she had only received the opposition when she arrived last night, and had not had the opportunity to print a copy of her reply, but that she had been working on it for a long time. Orly asked if she could sit down and read the reply.
Judge Nishimura told Orly that she could argue her reply today.
Orly sat down and began to read from her laptop. Judge Nishimura said, “Please stand.” Orly then proceeded to read her reply into the record, holding her laptop in her hand for about the first third, before placing the laptop back on the table and reading out loud while leaning over and looking at the screen. Orly became agitated several times while reading from the computer, typically during sections of the document that dealt with the accusations of frivolous conduct. Both Judge Nishimura and the court reporter had to ask her to slow down on several occasions, and it would not surprise me if this portion of the transcript has some small errors.
Orly began by saying that she wanted the court to extend the jurisdiction of the Georgia subpoena, and that she wanted the court to sanction the Defendants for misconduct. Orly then went on to basically recite from the litany of wrongs she posted on her malware-ridden website this morning. In particular, Orly said that the Defendants were effectively defrauding the court by saying the subpoena is not valid.
Orly went on to argue that she is representing clients in Georgia, where she has a case in front of Judge Malihi. Judge Nishimura interrupted to spell “Malihi” for the record, and informed Orly that she would need to spell all names.
Orly argued that Obama’s motion to dismiss had been denied, and that the subpoena was valid. Orly then read part of the Georgia rules dealing with the issuance of subpoenas. Orly argued – repeatedly (I think 3 times in a paragraph or two) – that the proper remedy for the Department of Health, should they object to the subpoena, would be to file a Motion to Quash in the Administrative Court in Georgia. Orly argued that “any Court” would extend the jurisdiction of Judge Nishimura’s Court, should Judge Nishimura subpoena an out-of-state witness. Orly continued by stating that enforcing an out of state subpoena is largely a ministerial function, not something that should be the subject of argument.
Orly went on to argue that the Office of Administrative Hearings is not Small Claims Court or Traffic Court. It’s been given specific jurisdiction for ballot and election challenges, so it is therefore a court of competent jurisdiction, and the subpoena therefore is an order from a court of competent jurisdiction, so she is entitled to go into the vault and inspect it under 338-18(9).
Orly stated – again – that the Defense Motion to Dismiss had been denied in the Georgia case, and that Obama had therefore been ordered to stand trial. She argued that Obama is required to provide a copy of the birth certificate, and that the best evidence rules demand that she be given access to inspect the original, as what Obama is presenting is only a copy.
Orly advised the Court that if the court refused to extend the jurisdiction of a subpoena issued by a sister state, the Court would be “engaged in obstruction of justice”.
Orly then went down the list of reasons to quash a subpoena given in the GA Administrative hearing rules (I think the cited section was 616-1-2-19(?), but I missed something in there while Orly was being asked to slow down again), and insisted that none of them could possibly apply in this case. Orly stated that the subpoena is not unreasonable or oppressive, that the materials sought are not irrelevant, not cumulative, very relevant, and that basic fairness requires permitting the subpoena to stand.
Orly stated that it can’t be oppressive to show the subpoena if the defendant’s campaign manager is selling cups and t-shirts with a picture of the birth certificate on it. (She had to be told to slow here). She went from there to “pinnacle of corruption to demand sanctions and vexatious litigant status” and had to be told to slow again.
Orly stated that the subpoena is valid because it doesn’t fall under any of the enumerated conditions required to quash a subpoena, and it’s unreasonable not to approve it.
Orly argued that she is a lawyer with cases all over the country, and that she owes those clients a duty to zealously represent them, and that she can be held liable if she fails in that duty. Orly said that it’s harassment to demand that zealous and reasonable advocacy be sanctioned.
Orly argued that this case is like Roe v Wade (I think she was going for “capable of repetition but evading review”, but my notes are unclear. The CR was managing to keep up, but I was having trouble.) Orly said that the recent 9th circuit ruling said that the case there was filed too late, but candidates do have standing, and that eligibility cases can go forward, and that the 9th Circuit binds this Court. She argued that –? court (sorry) has said that voters have standing, that the case is like Roe in evading, and needs to be heard on the merits.
Orly stated that the subpoena was issued in a related case, and it is therefore proper to have the subpoena matter heard in this case. It was proper to expedite the case, and that therefore nothing frivolous took place procedurally, and that the case remains open until the final judgement is filed. Orly stated that the Defendant has not shown “a shred of evidence” of vexatiousness.
I have a note that reads “poor SECR” here, so Orly was probably asked to slow again, and I might have missed something.
Orly argued that she has only filed a single action in Hawaii, so she can’t be vexatious, because that requires multiple actions. Orly said that there’s nothing vexatious about being zealous in pursuit of her clients’ interests.
Orly also argued that her motions cannot possibly be frivolous, because if they were frivolous then Judge Nishimura should have used her discretion to deal with them summarily. But there were hearings. Therefore the filings were not frivolous, and if the Defendants are arguing that Orly is vexatious, they’re really calling this Court vexatious.
Orly went on to say that the acts of the Defendant and Ms. Nagamine are frivolous, abusive, oppressive, and possibly a few other things. They clearly represent, Orly said, a last-ditch attempt to cover up.
I believe Orly said that her original case included the DoH’s refusal to give her the Sunahara birth certificate, and pointed to the Sunahara case, where Duncan Sunahara clearly has a direct and tangible interest, as an example of stonewalling and corruption, and that both cases show flagrant violations of 338-18 by the Department of Health. Orly said that it is abundantly clear that the only reason for this is a criminal cover-up.
Orly said that asking for sanctions defames the Plaintiff. She said that this is a case of national importance that deals with the most sacred civil right – the right to vote in an election that is free of fraud. This case, Orly says, is protected redress of grievances. She went on to say that when the cases of Susan B Anthony and Korematsu were being dealt with, the defendants there probably asked for sanctions, too.
That concluded Orly’s reading of the reply memo. At this point, it was about 10:55.
Judge Nishimura asked Ms. Nagamine to reply. Ms. Nagamine stated that she felt that the opposition brief had contained everything needed, and asked Judge Nishimura how she would like Ms. Nagamine to cover things. Judge Nishimura asked Ms. Nagamine to summarize.
Ms. Nagamine stated that their position was first that the subpoena is not valid. She pointed out that they believe that Administrative Tribunals in Georgia are not courts of competent jurisdiction in Hawaii.
Ms. Nagamine went on to point out that Ms. Taitz only partially read the rule that covers Georgia Administrative subpoenas. The full rule says they may be served anywhere in Georgia, and Hawaii isn’t in Georgia. Even if Hawaii is in Georgia, they believe that Judge Nishimura has no authority to enforce the subpoena, as there is nothing in Hawaiian laws or rules to allow her to do so. Ms. Nagamine pointed out that the Georgia rules state that the recourse when a subpoena is disobeyed is supposed to be to the Superior Court in the county where the action is occurring. Therefore, even if the Dept. of Health is disobeying a subpoena (which they do not believe is true), that matter is for a Georgia court to address, and at the end of the day, 338-18 still controls, and Orly still has no direct and tangible interest.
Ms. Nagamine then stated that the subpoena attached to the motion being heard wasn’t even the subpoena that they had received, and that they had received and replied to a subpoena for a hearing that was supposed to occur in the January 16th-18th window, not January 26th. Judge Nishimura asked if Ms. Nagamine was saying that there had been no service of that subpoena. Ms. Nagamine confirmed that this was correct.
Ms. Nagamine then went on to discuss the matter of sanctions. She stated at the beginning that this issue is not presently before the Judge – she had wanted to have the motion prepared today, but the demands of opposing the current motion had intervened – but she wanted to get their position on the record so that nothing in the motion would take anyone by surprise.
Ms. Nagamine stated that they would be asking for monetary sanctions to compensate them for the wasted time. She stated that a lot of time had been wasted on this issue in general, and that responding to the demands of Orly Taitz consumed a particularly large amount of time because her requests need to be interpreted. They need to take extra time to try to figure out what she is asking for, what she is trying to argue, and they have to reply to everything that is a possibility. She said that those sanctions would be to reimburse, but that they would in all seriousness be applying for vexatious litigant status.
Ms. Nagamine went on to say that there are criteria under Hawaiian law for vexatious litigant status, and that they feel that Orly meets all of them. She stated that while there has only been one filing in Hawaii, there have been many cases around the country including one in Georgia.
Orly tried to object. Judge Nishimura said that Ms. Nagamine had not interrupted or objected during Orly’s entire presentation, and that the same courtesy was due. Orly said that she was under the impression that courts allow objections. Judge Nishimura told her to extend the courtesy she had received.
Ms. Nagamine continued that it was clear from the outcome in Georgia that monetary sanctions probably won’t stop Orly, because $20,000 clearly hasn’t, but that vexatious litigant status would keep her from further impairing the operations of the Department of Health and AG by keeping her from proceeding with an action unless a court found a scintilla of possible merit in the case.
Judge Nishimura pointed out that no Judgement has been filed yet, and that Orly was right about that much of the procedural aspect, and referred to the Jenkins case. Ms. Nagamine agreed, and said that they’d been unable to submit the judgement because that requires them to certify that there’s nothing pending, and Orly keeps filing stuff.
Orly was offered the opportunity to reply. It was now 11:05.
Orly said that she will file a motion asking for sanctions against Ms. Nagamine for public corruption, that the corruption was unprecedented. Nobody has ever seen the birth certificate, and the trial is in two weeks. My notes here read “Lady Liberty”, so I think Orly was probably describing herself as a civil rights pioneer here. She did ask the court how in the world this could be frivolous, how it could be vexatious, and how it could be sanctionable. Orly stated that the Attorney General must be part of a criminal enterprise to even think that this is frivolous.
Orly stated that under Marbury v Madison, any law that is repugnant to the Constitution is void, and that 338-18 is therefore void. She has provided a subpoena.338 requires an order. A subpoena is a court order. Orly argued that since the Department of Health had already said they wouldn’t obey, what’s the sense in serving them? It would be pointless in light of their previous statements. All she’s asking is to extend the jurisdiction of the court. My notes say that she was very agitated at this point.
Orly stated that this is a valid trial, a valid case, and that thousands of these subpoenas are dealt with day in and day out around the country. Clerks usually approve these orders. Orly said that there’s no reason not to give her what she wants, and that refusing to do so creates a standoff between Hawaii and the rest of the nation.
Orly told Judge Nishimura that she cannot deny other judges all over the country the right to the evidence they need to decide the cases that are coming, and that if this was anybody but Obama, the Department of Health wouldn’t be denying access.
Orly briefly returned to the theme of sanctions being oppressive and abusive. Orly informed the Court that if this motion is not granted, it doesn’t end here, and she will appeal to the 9th Circuit. Orly stated that there has never been a court ruling that a court can obstruct justice. She said that she’s asking Judge Nishimura not to obstruct justice, not to be part of the criminal enterprise. Orly said that Ms. Nagamine should file a motion to quash if she doesn’t want to obey the subpoena.
Ms. Nagamine was asked to reply.
She pointed out that Orly had just said that the DoH would have turned over any birth certificate but the President’s, but that Orly had earlier brought up the Department of Health’s refusal to turn over the Sunahara birth certificate. Ms. Nagamine said that they aren’t doing this for any reason other than protecting the confidentiality of the vital records, as the law requires them to.
Ms Nagamine noted that Orly had claimed that thousands of out of state subpoenas were enforced every day, that it would have been more helpful if she’d simply cited one case where this occurred, but that in any case the Georgia law is clear here.
Judge Nishimura then stated that Orly had cited to HRCP 45 in her motion. 45 was read. Judge Nishimura pointed out that no language there allowed the Court to do what Orly was asking. She noted that 45 refers to 30 and 31, but neither of them contain the necessary language either. Motion was denied, State to write order.
Court recessed at 11:18.
Here are the subjective impressions:
Orly did not look particularly good when I saw her before the hearing. She looked very tired, and had a diet coke open on the table near her laptop. Given the length of the reply Orly read into the record and what we know of her writing speed, I would be surprised if she slept at all last night. Her clothing looked relatively fresh. Nothing else did.
Orly’s demeanor during this court appearance ranged from agitated to frantic. As I noted earlier, she had to be told to slow down on numerous occasions. She was able to maintain a fairly reasonable pace when talking about the subpoenas. Whenever she talked about sanctions, the words gushed out. I believe LM_K was right in a post upthread, when she said that Orly is simply unable to grasp the concept of how other people could find her behavior objectionable. That part is clearly wounding her. Unfortunately, the accusations alone have not wounded her enough to make her stop.
I have many fewer notes about the Judge’s demeanor this time. Orly did most of the talking, and was talking so fast that I was not able to look up from my notebook as much as I’d wanted to.
Overall, both Judge Nishimura and Ms. Nagamine maintained very reasonable, patient, and level tones and demeanors throughout. Orly was given as much opportunity to state her position as she wanted – unlike earlier hearings, she was not told to wrap it up. As far as I can tell, Orly was not interrupted for anything other than instructions to slow down. Ms. Nagamine was given the opportunity to explain her position on sanctions even though the motion was not in front of the court for the explicit purpose of making sure that Orly was as forewarned as possible.
Judge Nishimura did not do, say, or express anything that would give any indication of her position on sanctions.
Orly did not say anything to me or to the Deputy AG’s after the hearing. She was quiet and very subdued while packing her things. In a switch from the prior hearing, she was actually much more animated during the hearing than immediately afterward.
Court document links courtesy of Jack Ryan Scribd.