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Dr. Orly Taitz, Esq. In Propria Persona 29839 Santa Margarita Pkwy., Ste 100 Rancho Santa Margarita, CA 92688 IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII ) DR. ORLY TAITZ, ESQ., ) CIVIL NO. 11-1-1731-08 RAN ) Plaintiff, v. ) ) ) ) LORETTA FUDDY IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE DEPARTMENT OF HEALTH, STATE OF HAWAII, DR. ALVIN T. ONAKA, IN HIS OFFICIAL CAPACITY AS THE REGISTRAR, DEPARTMENT OF HEALTH, STATE OF HAWAII, ) ) ) ) ) Hearing: Date: October 12, 2011 Time: 8:30 a.m. Judge: Hon. Rhonda A. ) Nishimura ) ) ) OPPOSITION TO MOTION TO DISMISS PETITION FOR WRIT OF MANDAMUS

Defendants.

__________________________________________) Dr. Orly Taitz, Esq. (Dr. Taitz) hereby opposes Defendants Motion to Dismiss her Petition for a Writ of Mandamus as follows: I. INTRODUCTION Dr. Taitz seeks to authenticate the birth certificate released by Barack Obama on April 27, 2011 by comparing that PDF image with any records that might be on file in the Hawaii Department of Health. To that end she requested, by subpoena issued under the power of a Federal Court, the right to view the record. Such request was met only with objections prompting the within action seeking an order from this Honorable Court requiring the Director of Health to make the questioned records available for assessment. The usual privacy concerns advanced by holders of vital statistics records should be overcome by the release of the records by the purported holder himselfin this case, Barack Obama. Nevertheless, Defendants continue to withhold such documents in spite of the obvious national importance of the issue. They advance two procedural arguments and one substantive argument in their Motion to Dismiss. They argue (1) lack of personal service for insufficiency of service of process, (2) lack of subject matter jurisdiction, and (3) failure to state a claim upon which relief can be granted. This Opposition addresses those claims in reverse order, seriatum. II. THE RECORDS SOUGHT CAN AND SHOULD BE RELEASED UNDER HAWAII LAW AND ON PUBLIC POLICY GROUNDS. Defendants endeavor to establish that Hawaii Revised Statutes section 338-18 prohibits disclosure of Barack Obamas alleged birth certificate which certificate has now already been purportedly disclosed by Obama himself. The heart of Defendants substantive argument is that HRS section 338-18 allows only a certain enumerated list of persons with a direct and tangible interest to access Hawaiis public health records. (See Defendants Motion to Dismiss at pp. 6-8) Defendants parse the statute but fail to acknowledge that the list of directly and tangibly interested parties to which such a vital record can be disclosed is not exhaustive by the terms of the statute, nor has it been interpreted to be so by a court of competent jurisdiction or in this peculiar and compelling circumstance. Defendants cite not to any case law for their proposition of exclusivity, but merely to an Office of Information Practices Opinion. (See Defendants Motion at pp. 7-9). Such an administrative opinion is not binding on this Honorable Court.

In their attempts to encourage the Court to read the list of directly and tangibly interested parties as exhaustive rather than illustrative, Defendants fail to reference the recent case of Justice v. Fuddy, 125 Hawaii 104, 253 P.3d 665 (2011), which dealt with this sort of request before Obamas public release of a PDF image of a birth certificate in April 2011. Significantly, the Court in Justice did not hold, and did not specifically address, whether the list of directly and tangibly interested persons is exlusive or not. Also, it is important to note that the Justice decision was issued weeks before the White House released its PDF image of the Birth Certificate on April 27, 2011the suspicious image questioned by Dr. Taitz and others. While the Court in Justice denied the plaintiff access to Obamas birth certificate allegedly maintained in Hawaiis official records, Obamas release of the purported PDF image of a birth certificate alters the calculus set forth in Justice, which tended to dismiss the interest of the plaintiff in that case as a kind of inert and idle curiosity. In the wake of the release of the image of the alleged Birth Certificate by Obama the inquiry becomes one not of simply viewing the confidential private vital records of an individual for curiositys sake, or for the sake of some sort of fishing expedition, but comparing, verifying and authenticating the sharply questioned actual Birth Certificate (if any) in the official record with the PDF image of the document released by its purported holder. Dr. Taitz raises serious questions about the authenticity of the document released by Obama and makes such allegations plain in her Petition/Complaint to this Honorable Court. These questions, coupled with the prior release of an image of the questioned document, compels the Court to grant access to this one record in this historic circumstance. The Justice decision makes clear that a Court may also consider the reason and spirit of the law, and the cause which induced the legislature to enact it to discover its true meaning. Justice at 125 Hawaii 104, 110, 253 P.3d 665, 670. It cannot be said that the State must maintain any further alleged privacy interest under statute or public policy, as the subject of that confidentiality has most certainly waived it by purporting to release the vital record itself. The Justice decision cited various reasons for finding that the Plaintiff did not have a basis to release the records under HRS section 338-18. Chief among them was the observation that, Moreover, Plaintiffs complaint did not allege any basis for questioning that President Obama is a natural born citizen and that he is eligible to serve as President. See Justice at 125 Hawaii 104, 113, 253 P.3d 665, 673. Conversely Dr. Taitzs assertion in this case expressly states that the release of the questioned Birth Certificate raises a high degree of suspicion and requires authentication. (See paragraphs 19 -34 of Dr. Taitzs Complaint in this matter.)

Moreover, when a document has already been publicly disclosed on a matter of grave national import, it can hardly be said that the holder of the record retains any sort of privacy interest in the mere viewing of a document that has allegedly already been disclosed. Public policy concerns compel production of such previously released record for verification purposes only. This is the basis of Dr. Taitzs claim under the UIPA: for [g]overnment records pursuant to a showing of compelling circumstances affecting the health or safety of any individual[.] HRS 92F12(b)(3) (1993). Indeed, the Hawaii courts have a history of weighing public policy considerations strongly when assessing whether to make otherwise confidential records or procedures available for public knowledge. For example, the Hawaii Supreme Court has stated that, [w]hen analyzing the public interest exception, [it] look[s] to (1) the public or private nature of the question presented, (2) the desirability of an authoritative determination for future guidance of public officers, and (3) the likelihood of future recurrence of the question. Hamilton v. Jones, 119 Hawaii at 67, 193 P.3d at 84445. Further, [T]he cases in this jurisdiction that have applied the public interest exception have focused largely on political or legislative issues that affect a significant number of Hawaii residents. For example, in Doe v. Doe, 116 Hawaii 323, 172 P.3d 1067 (2007), the Court held that the public interest exception applied because it was in the publics interest for this court to review the family courts ruling that Hawaiis grandparent visitation statute [was] unconstitutional on its face. Doe at 327, 172 P.3d at 1071. Additionally, in Kahoohanohano v. State, 114 Hawaii 302, 162 P.3d 696 (2007), the Court held that the subject appeal was of a public nature because the outcome would affect all state and county employees. Id. at 333, 162 P.3d at 727. Likewise, in Right to Know Committee v. City & County of Honolulu, 117 Hawaii 1, 175 P.3d 111 (App. 2007), the Court held that the question presented was of a public nature because the issue whether the City Council must conduct its business in full view of the public and in compliance with the Sunshine Law was more public in nature than private. Id. at 9, 175 P.3d at 119. Dr. Taitz respectfully submits that in this case the Court should weigh heavily the public interest that all Hawaiians have in establishing the authenticity of the PDF image of the birth certificate released by Obama this past April. Any privacy interest that the holder of the record may have has been waived and the public quite simply has a right to know if there is a record in the official records of the State of Hawaii which corresponds to the PDF image of the Birth Certificate. III. DR. TAITZS PETITION FOR WRIT OF MANDAMUS SHOULD NOT BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION, BUT RATHER DECIDED ON ITS MERITS.

Defendants contend the Circuit Court lacks subject matter jurisdiction to decide the matter before it in this case. Defendants contend that Petitions for Writs of Mandamus have been abolished in the Circuit Courts except in certain circumstances which are not present in this case. Dr. Taitz does not concede this point, however, even if Defendants argument on this point is accepted, Dr. Taitz submits that this Court could and should proceed to consider the matter by treating Dr. Taitz Petition either as a petition for relief with original jurisdiction arising in the Circuit Court or as an Agency Appeal to the Circuit Court. (a) Dr. Taitz submits that this Court could and should consider this action as an action with original jurisdiction arising in the Circuit Court, even if it is improperly styled as a Petition for Writ of Mandamus. While the writ of mandamus was nominally abolished in the Circuit Courts under the Hawaii Rules of Civil Procedure, Rule 81.1 the rule also states that .Relief heretofore available by mandamus may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules. Dr. Taitz asks this Court to consider her petition for writ of mandamus as a complaint initiating an original action to compel an official to perform a duty allegedly owed to an individual and to thus hear the matter on its merits. The Hawaii Supreme court recognized the possiblity of an action of original jurisdiction in the Circuit Courts even after the nominal abolition of the title of Writ of Mandamus by rule. See Nam Sing Shak v. McVey, 54 Haw. 274, 506 P.2d 8 (1973). The Court there stated, The rule mentioned above [HRCP 81.1] is similar to Rule 81(b) of the Federal rules as to which it is stated in Hammond v. Hull, 76 U.S. App. D.C. 301, 131 F.2d 23, 25 (1942); The remedy which, before adoption of the new Rules of Civil Procedure, was known as mandamus, is available under the new rules and is governed by the same principles as formerly governed its administration. Original jurisdiction to hear petitioners claim for relief is in the circuit court. Id. The Court may also consider Baldeviso v. Thompson, 54 Haw. 125, 504 P.2d 1217 (1972), wherein the Hawaii Supreme Court reversed and remanded a decision by the Circuit Court for failure to state a claim upon which relief could be granted and noted, The appellants petition for an alternative writ of mandamus will be treated as a complaint. Id. at 130, 1220. Thus, Dr. Taitz respectfully submits her claim before this Honorable Court should be treated as a claim for relief with original jurisdiction arising in the Circuit Court, even if the petition for relief is improperly styled. (b) Dr. Taitzs petition may be considered as an agency appeal.

The right to appeal is purely statutory and exists only when jurisdiction is given by some constitutional or statutory provision. Lingle v. Hawaii Govt. Employees Assn, 107 Hawaii 178, 184, 111 P.3d 587, 593 (2005). HRS 9114 confers jurisdiction on the circuit court to review final decision[s] and order[s] in [ ] contested case[s]. As previously quoted, HRS 9114 provides in relevant part that: (a) Any person aggrieved by a final decision and order in a contested case or by a preliminary ruling of the nature that deferral of review pending entry of a subsequent final decision would deprive appellant of adequate relief is entitled to judicial review thereof under this chapter; but nothing in this section shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo, including the right of trial by jury, provided by law. Notwithstanding any other provision of this chapter to the contrary, for the purposes of this section, the term person aggrieved shall include an agency that is a party to a contested case proceeding before that agency or another agency. To the extent this Honorable Court declines to find original jurisdiction to hear Dr. Taitzs petition for relief, she requests the Court consider it on the basis of Department of Healths refusal to allow her access to view the requested document. IV. DR. TAITZS PETITION FOR WRIT OF MANDAUMUS SHOULD NOT BE DISMISSED FOR LACK OF PERSONAL JURISDICTION. The basis of the Defendants Motion to Dismiss for lack of Personal Jurisdiction is insufficiency of the service of process. However, Defendants do not dispute they received service or that they have actual notice of the proceedings herein. In fact, they have responded on the merits in this action, thereby waiving any objection they could properly raise to lack of personal jurisdiction. The Proof of Service attached to Defendants Motion as Exhibit B reflects service by certified mail on both the Director of Health, the Registrar of the Department of Health, and the Deputy Attorney General. The return receipts from the Director of Health and the Registrar of the Department of Health are also attached to the proof of service.

Had an individual delivered the copies of the documents directly to the Department of Health, they would have been signed for by the front desk, as was likely the case with respect to the return receipts. If, for some reason, this Court is inclined not to decide the matter on its merits but instead find service of process insufficient, Dr. Taitz requests the opportunity to effect personal service in the manner which may be required by this Court. However, the Defendants have now appeared on the merits and raised defenses on the merits in their Motion to Dismiss. That should be sufficient to overcome objections regarding insufficiency of service of process, as it is a concession of actual notice and participation in the proceedings. V. CONCLUSION. For all the foregoing reasons, the undersigned respectfully requests this Honorable Court deny Defendants motion on the merits and/or, if there is a procedural deficiency of some kind, afford the Petitioner an opportunity to cure it. Respectfully submitted, September 30, 2011 Dr. Orly Taitz, Esq. _________________________ Dr. Orly Taitz, Esq.