hollister v soetoro (hemenway reply)

8/14/2019 Hollister v Soetoro (Hemenway Reply)

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IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

GREGORY S. HOLLISTER, et al. ) Case Below 08-2254 JRAppellant, )

)

v. ) No 09-5080

) Consolidating No. 09-5161

Barry Soetoro, in his capacity as a natural )person; de facto President in posse; and as )

de jure President in posse , also known as )Barack Obama, et al. )

Appellees. )

REPLY TO THE SHOW OF CAUSE GIVEN ITS SUBSTANTIVECOMMENT AS AN OPPOSITION IN EFFECT

TO PLAINTIFFS/APPELLANTS MOTION TO TAKE JUDICIAL

NOTICE OF STATUTES, DOCUMENTS FROM RELATED CASES ANDENTRIES IN OFFICIAL RECORDS, WITH COMMENTS

In response to the Courts Order of October 20, 2009 which ordered

the appellees to show cause why the motion of the appellants for Judicial

Notice should not be considered and decided without a response, appellees

filed document, number 1213344. In it they cited cases and advanced

arguments in opposition to the motion which the plaintiffs/appellants put

forward in seeking judicial notice. The appellees at first did not respond to

the motion at all. Then, only upon the issuance of a Show of Cause, they

respond with the grossest possible misrepresentations. All items proposed

can be taken notice of by the Court.

Case: 09-5080 Document: 1215011 Filed: 11/09/2009 Page: 1


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There is a glaring misrepresentation of the law and even of the facts of

the historical development of Rule 201 of the Federal Rules of Evidence in

this show of cause document. That misrepresentation is the falsehood, for

that what it amounts to, is contained on p. 2 of the show of cause document:

Further, Rule 201 only permits judicial notice of

adjudicative facts that are (1) generally known within theterritorial jurisdiction of thecourt or (2) capable of accurate

and ready determination by resort to sources whose accuracy

cannot reasonably be questioned. Fed.R.Evid.201(b). see

Charles Alan Wright & Kenneth W. Graham, 21B Federal Practice and Procedure: Evidence 5110.1 (2d ed.2005)

(stating Fed.R.Evid.201 applies to judicial noticedeterminations by courts of appeals).

Thus, this is a representation that only very limited adjudicative facts can

be taken judicial notice of and nothing else This misrepresentation is belied

by a very large body of case law stretching back many, many years and by

the history of the Rule and even the language of the Rule.

Notably the above quote cites Rule 201(b). To anyone knowledgeable

of the Rule and the law of evidence this is because Rule 201(a) makes it

clear that Rule 201 only governs adjudicative facts. Judicial notice of

facts and items other than adjudicative facts remains outside of the scope

of the Rule, governed by the enormous body of case law. The rule is

confined to govern[ing] adjudicative facts; it has nothing whatsoever to do

with the misrepresentation advanced by the appellants here in its name.



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This is made abundantly clear from the history of the development of

the Rule. Here, from the 1972 Proposed Rules, is the leading note about

Rule 201:

Note to Subdivision (a). This is the only evidence rule on thesubject of judicial notice. It deals only with judicial notice of

adjudicative facts. No rule deals with judicial notice oflegislative facts. Judicial notice of matters of foreign law is

treated in Rule 44.1 of the Federal Rules of Civil Procedure

Rule 44.1 of the Federal Rules of Civil Procedure is instructive when read in

conjunction with this historical note and the massive body of case law on

judicial notice:

Rule 44.1. Determining Foreign Law

A party who intends to raise an issue about a foreign country's law

must give notice by a pleading or other writing. In determining foreign law,

the court may consider any relevant material or source, including testimony,

whether or not submitted by a party or admissible under the Federal Rules of

Evidence. The court's determination must be treated as a ruling on a question

of law.

Thus, Rule 44.1 Fed.R.Civ.P. refers to the law of foreign countries not

in any way to laws in other jurisdictions of our own country. The vast body

of laws in our own country along with a lot of other things treated in the case

law are subject to judicial notice. Rule 201 only deals with the



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govern[ance] of a single narrow area of judicial notice, and does not in

any way exclude judicial notice of many other things, including legislative

facts.

The notes to the Rule as reported on Westlaw go on to explain how

the area of judicial notice of legislative facts and, ultimately, of other facts

that can be judicially noticed, is one with far greater latitude than with

judicial notice of adjudicative facts:

The omission of any treatment of legislative facts results fromfundamental differences between adjudicative facts and

legislative facts. Adjudicative facts are simply the facts of a

particular case. Legislative facts, on the other hand, are those

which have relevance to the legal reasoning and the lawmakingprocess, whether in the formulation of legal principles or ruling

by a judge or court or in the enactment of a legislative body.The terminology was coined by Professor Kenneth Davis in his

article An Approach to Problems of Evidence in the

Administrative Process, 55 Harv.L.Rev. 364, 404-407 (1942).The following discussion draws extensively upon his writings.

In addition, see the same authors Judicial Notice, 55Colum.L.Rev. 945 (1955); Administrative Law Treatise, ch.

15(1958); A System of Judicial Notice Based on Fairness andConvenience, in Perspectives of Law 69 (1964).

The usual method of establishing adjudicative facts is through

the introduction of evidence, ordinarily consisting of thetestimony of witnesses. If particular facts are outside of the

area of reasonable controversy, this process is dispensed withas unnecessary. A high degree of indisputability is theessential prerequisite.

The notes then go on to explain how the requirements for judicial notice of

legislative facts are less strict:



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Legislative facts are quite different, as Professor Davis says:

My opinion is that judge-made law would stop growing if judges, in thinking about questions of law and policy, were

forbidden to take into account the facts they believe, asdistinguished from facts are `clearly * * * within the domain

of the indisputable. Facts most needed in thinking about

difficult problems of law and policy have a way of being

outside the domain of the clearly indisputable. A System ofJudicial Notice Based on Fairness and Convenience, supra, at82.

The notes then go on to give an example form the common law of

case development of the concept of judicial notice even beyond the

recognition of legislative facts:

An illustration is Hawkins v. United States, 358 U.S. 74, 79

S.Ct. 136, 3 L.Ed. 2d 125 (1958), in which the Court refusedto discard the common law rule that one spouse could not

testify against the other, saying, Adversary testimony givenin criminal proceedings would, we think, be likely to destroy

almost any marriage. This conclusion has a largeintermixture of fact, but the factual aspect is scarcely

indisputable. See Hutchins and Slesinger, Some

Observations on the Law of EvidenceFamily Relations, 13Minn.L.Rev. 675 (1929). If the destructive effect of the

giving of adverse testimony by a spouse is not indisputable,should the Court have refrained from considering it in theabsence of supporting evidence?

The notes then go on to quote further from Professor Davis as he criticizes

Model Codes and Uniform Rules as opposed to common law case

development, something which applies widely and not just in the area of

domestic relations law:



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If the Model Code or the Uniform Rules had been applicable,the Court would have been barred from thinking about the

essential factual ingredient of the problems before it, and sucha result would obviously be intolerable. What the law needs at

its growing points is more, not less, judicial thinking about thefactual ingredients of problems of what the law ought to be,

and the needed facts are seldom clearly indisputable. Davis,supra, at 83.

Continuing to go further into the development of the law of judicial

notice outside of both adjudicative and legislative facts and then

applying the broader rule outside of both to legislative facts, the notes then

say:

Professor Morgan gave the following description of themethodology of determining domestic law:

In determining the content or applicability of a rule of

domestic law, the judge is unrestricted in his investigation andconclusion. He may reject the propositions of either party or

of both parties. He may consult the sources of pertinent datato which they refer, or he may refuse to do so. He may make

an independent search for persuasive data or rest content with

what he has or what the parties present. * * * [T]he parties dono more than to assist, they control no part of the process.Morgan, Judicial Notice, 57 Harv.L.Rev. 269, 270-271 (1944).

This is the view which should govern judicial access tolegislative facts. It renders inappropriate any limitation in the

form of indisputability, any formal requirements of noticeother than those already inherent in affording opportunity to

hear and be heard and exchanging briefs, and any requirement

of formal findings at any level. It should, however, leave open

the possibility of introducing evidence through regularchannels in appropriate situations. See Bordens Farm

Products Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed.



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281 (1934), where the cause was remanded for the taking ofevidence as to the economic conditions and trade practicesunderlying the New York Milk Control Law.

The notes then go on to make clear that the broadness that applies to

legislative facts and judicial notice of them also applies to other facts

beyond either the adjudicative or the legislative:

Similar considerations govern the judicial use of non-

adjudicative facts in ways other than formulating laws andrules. Thayer described them as part of the judicial reasoning

process.

In conducting a process of judicial reasoning, as of otherreasoning, not a step can be taken without assuming

something which has not been proved, and the capacity to dothis with competent judgment and efficiency, is imputed to

judges and juries as part of their necessary mental outfit.Thayer, Preliminary Treatise on Evidence 279-280 (1898)

As Professor Davis points out, A System of Judicial Notice

Based on Fairness and Convenience, in Perspectives of Law69, 73 (1964), every case involves the use of hundreds of

thousands of non-evidence facts. When a witness in anautomobile accident case says car, everyone, judge and jury

included, furnishes, from non-evidence sources within himself,

the supplementing information that the car is an automobile,not a railroad car, that it is self-propelled, probably by an

internal combustion engine, that it may be assumed to havefour wheels with pneumatic rubber tires, and so on. The

judicial process cannot construct every case from scratch, likeDescartes creating a world based on the postulate Cogito, ergo

sum. These items could not possibly be introduced into

evidence, and no one suggests that they be. Nor are they

appropriate subjects for any formulized treatment of judicialnotice of facts. See Levin and Levy, Persuading the Jury with



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Facts not in Evidence: The Fiction-Science Spectrum, 105Pa.L.Rev. 139 (1956)

The notes then go ever further and point out that even with regard to

adjudicative facts, the only area of the broad law of judicial notice where

the Rule does apply, other non-adjudicative facts may be taken notice of to

appraise or assess whether or not the adjudicative facts that are covered by

the Rule may be taken notice of and that the treatment of such facts is

sufficiently discretionary that it can vary from case to case, even in direct

contradiction from one to the next. Here is what the notes say in that regard:

Another aspect of what Thayer has in mind is the use of non-evidence facts to appraise or assess the adjudicative facts of

the case. Pairs of cases from two jurisdictions illustrate thisuse also the difference between non-evidence facts thus used

and adjudicative facts. In People v. Strook, 347 Ill. 460, 179

N.E. 821 (1932), venue in Cook County held not established

by testimony that crime as committed at 7956 South ChicagoAvenue, since judicial notice would not be taken that the

address was in Chicago. However, the same courtsubsequently ruled that venue in Cook County was established

by testimony that a crime occurred at 8900 South Anthony

Avenue, since notice would be taken of the common practiceof omitting the name of the city when speaking of local

addresses, and the witness was testifying in Chicago. People v.

Pride, 16 Ill.2d 82, 156 N.E.2d 551(1951). And inHughes v.

Vestal, 264 N.C.500, 142 S.E.2d 361 (1965), the SupremeCourt of North Carolina disapproved the trial judges

admission in evidence of a state-published table of automobile

stopping distances on the basis of judicial notice, though the

court itself had referred to the same table in an earlier case in arhetorical and illustrative way in determining that the

defendant could not have stopped her car in time to avoid



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striking a child who suddenly appeared in the highway andthat a nonsuit was properly granted. Ennis v. Dupree, 262 N.C.

224, 136 S.E.2d 702 (1964). See alsoBrown v. Hale, 263 N.C.176, 139 S.E. 2d 210 (1964); Clayton v. Rimmer, 262 N.C.

301, 136 S.E.2d 562 (1964). It is apparent that this use ofnon-evidence facts in evaluating the adjudicative facts of the

case is not an appropriate subject for a formalized judicialnotice treatment.

At this point the notes reinforce the narrow scope of Rule 201, saying: In

view of these considerations, the regulation of judicial notice of facts by the

present rule extends only to adjudicative facts. So the representation that

only judicial facts can be noticed because of Rule 201 is to misrepresent

the Rule as extensively as can be possibly done. This case and all the cases

concerning the constitutional validity of Soetoro/Obama are inherently

political. They concern the most extensive overlapping area of law and

politics that can possibly be imagined. Gross deception is at issue and,

therefore, special care should be taken not to condone such

misrepresentation. The appellees at first did not respond to the motion at all.

Then, only upon the issuance of a Show of Cause, they respond with the

grossest possible misrepresentations.

All items proposed can be taken notice of by the Court. The failure of

appellees to properly oppose them is a waiver of proper objection. They

dont object to the law. Public record documents from the proceedings in



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the case before the Middle District of California can be taken notice of. The

Kenyan birth certificate submitted with its supporting statement under

penalty of perjury, for example, should be taken notice of, not for its validity,

but for the fact that it has been submitted and so raises a question that should

be examined since the same inquiry is sought in this case. The official

records put out by Speaker of the House Pelosi, in two different versions in

her capacity as a Party Official participating in the public record of the

electoral process can be taken notice of, not as to the truth of one versus the

other, but for the fact that two different versions existed, both officially

certified, and apparently a different version was sent to one state as opposed

to other states. This raises the same question that alteration of documents

always does, a presumption of deception or fraud that requires inquiry. The

Cheney failure to allow the required objections is a record part of the

electoral process. Any extraneous commentary to what is noticeable can

simply be ignored. What we see here is an outrageous misrepresentation of

the law and even of the facts of the Rule cited followed by little more than

name calling of what was presented.

Respectfully submitted,

/s/



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John D.Hemenway D.C. Bar No. 3796634816 Rodman Street, NW

Washington DC 20016(202) 628-4819

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have caused the foregoing to be servedelectronically upon counsel of record this 10th day of November, 2009.

Robert Bauer, Esq.Kate Ellen Andrias, Esq.

Andrew H. Werbrock, Esq.

Perkins Coie LLP

607 14th Street, NWSuite 800

Washington, DC 20005-2003

and

R. Craig Lawrence, Assistant U.S. AttorneyU.S. Attorney's Office

(USA) Appellate Division, Civil Unit555 4th Street, NW

Washington, DC 20530

and

Lawrence J. Joyce, Esquire

Attorney for Appellant Hollister1517 N. Wilmot Rd., #215

Tucson, AZ 85712

__________________________

John D. Hemenway



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TABLE OF AUTHORITIES

CASES PAGE(S)

Bordens Farm Products Co. v. Baldwin, 293 U.S. 194,55 S.Ct. 187, 79 L.Ed. 281 (1934) 6

Brown v. Hale, 263 N.C. 176, 139 S.E. 2d 210 (1964) 9

Clayton v. Rimmer, 262 N.C. 301, 136 S.E.2d 562 (1964) 9

Ennis v. Dupree, 262 N.C. 224, 136 S.E.2d 702 (1964) 9

Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136,

3 L.Ed. 2d 125 (1958) 5

Hughes v. Vestal, 264 N.C.500, 142 S.E.2d 361 (1965) 8

People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551(1951) 8

People v. Strook, 347 Ill. 460, 179 N.E. 821 (1932) 8

RULES, STATUTES, TREATISES

Federal Rules of Civil Procedure, Rule 44.1 3

201 of the Federal Rules of Evidence 2, 3, 9

Davis, Kenneth: An Approach to Problems of Evidencein the Administrative Process, 55 Harv.L.Rev.

364, 404-407 (1942) 4

Davis, Kenneth: Judicial Notice, 55 Colum.L.Rev. 945 (1955) 4

Davis, Kenneth: Administrative Law Treatise, ch. 15(1958) 4

Davis, Kenneth: A System of Judicial Notice Based onFairness and Convenience, in Perspectives of Law 69 (1964) 4, 5, 6, 7



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Hutchins and Slesinger, Some Observations on the Law ofEvidenceFamily Relations, 13 Minn.L.Rev. 675 (1929) 5

Levin and Levy, Persuading the Jury with Facts

not in Evidence: The Fiction-Science Spectrum,105 Pa.L.Rev. 139 (1956) 7-8

Morgan, Judicial Notice, 57 Harv.L.Rev. 269, 270-271 (1944) 6

Thayer, Preliminary Treatise on Evidence 279-280 (1898) 7

Wright, Charles Alan & Graham, Kenneth W., 21B

Federal Practice and Procedure: Evidence 5110.1(2d ed.2005) 2


hollister v soetoro (hemenway reply)

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