Wolf v Fuddy (HI ICOA) - Opening Brief | Summary Judgment | Federal Rules Of Civil Procedure

CAAP-12-0000499

IN THE INTERMEDIATE COURT OF APPEALS STATE OF HAWAII ___________________________________ WILLIAM WOLF, Plaintiff-Appellant, vs. LORETTA FUDDY, in her official capacity as Director of the Department of Health, State of Hawai’i, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) )

OF

S

APPELLANT WILLIAM WOLF’S OPENING BRIEF APPENDIX

IE

ND

STATEMENT OF RELATED CASES

FR

FO GB
Pro Se

CIVIL NO. 11-1-2276-09

APPELLANT WILLIAM WOLF’S OPENING BRIEF; APPENDIX; STATEMENT OF RELATED CASES

FIRST CIRCUIT COURT THE HONORABLE GARY W.B.CHANG, JUDGE

WILLIAM WOLF 600 Industrial Way West Eatontown, NJ 07724 Phone: (732) 222-1800 Facsimile: (732) 389-9191

OW .C OM

Electronically Filed Intermediate Court of Appeals CAAP-12-0000499 09-OCT-2012 08:41 AM

CAAP-12-0000499

IN THE INTERMEDIATE COURT OF APPEALS STATE OF HAWAII ___________________________________ WILLIAM WOLF, Plaintiff-Appellant, vs. LORETTA FUDDY, in her official capacity as Director of the Department of Health, State of Hawai’i, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) )

FR

IE

ND

APPELLANT WILLIAM WOLF’S OPENING BRIEF

S
WILLIAM WOLF 600 Industrial Way West Eatontown, NJ 07724 Phone: (732) 222-1800 Facsimile: (732) 389-9191 Pro Se

OF

FO GB

CIVIL NO. 11-1-2276-09 APPELLANT WILLIAM WOLF’S OPENING BRIEF

OW .C OM

TABLE OF CONTENTS Page TABLE OF AUTHORITIES. .................................................................................................... iii-v I. STATEMENT OF THE CASE........................................................................................... 1 A. B. II. Overview................................................................................................................. 1 Background. ............................................................................................................ 3

POINTS OF ERROR. ......................................................................................................... 5 A. B. Granting Defendant’s Motion to Dismiss Under HRCP Rule 12(b)(6).................. 5 Denying Plaintiff’s Motion for Summary Judgment. ............................................. 6

III.

STANDARDS OF REVIEW. ............................................................................................. 6 A. B. C. Motion to Dismiss Complaint................................................................................. 6 Motion for Summary Judgment. ............................................................................. 6 Statutory Interpretation. .......................................................................................... 7

IV.

ARGUMENT...................................................................................................................... 7 A. The Text of HRS § 338-18 Does Not Apply When a Person Waives the Right to Confidentiality Given to Him by Said Statute. ......................................... 7 1. 2. 3. 4. 5. HRS § 338-18 Creates a Legally Protected Interest.................................... 7 The Nature and Characteristics of the Protected Interest............................ 8 A Statutory Right Can Be Waived.............................................................. 8 Waiver of a Statutory Right Stops Application of the Statute. ................... 9 The Complaint Alleges Sufficient Facts to Render § 338-18 Inapplicable............................................................................................... 10

FR

IE

ND

S

OF

FO GB
i

OW .C OM

TABLE OF CONTENTS (cont’d) Page B. Alternatively, the UIPA Requires Access by Wolf to Obama's Birth Records. ....................................................................................................... 10 1. 2. 3. 4. 5. C. Conflict Between Pertinent UIPA Sections Regarding Disclosure........... 10 Scrutiny and Evaluation of Justice v. Fuddy............................................. 11 The UIPA Codified an Override Mechanism............................................ 12 Parameters of the Privacy Interest Protected by the UIPA........................ 13 Evaluating All Scenarios, Wolf Must Prevail Under Each....................... 14

D.

Wolf is Entitled to Summary Judgment Forthwith – No Remand is Necessary........................................................................................................... 17

V.

CONCLUSION................................................................................................................. 19

FR

IE

ND

S
ii

OF

FO GB

The Federal Constitution Prohibits Any State Law or State Action Which Denies or Obstructs Access to a Current President's Birth Records. .................... 15

OW .C OM

TABLE OF AUTHORITIES Page CASES AFL Hotel & Restaurant Workers Health & Trust Fund v. Bosque, 110 Haw. 318, 132 P. 3d 229 (2006). ............................................................................... 17 Coon v. City and County of Honolulu, 98 Haw. 233, 47 P. 3d 348 (2002)...................... 6, 7, 8, 9 French v. Hawaii Pizza Hut, Inc., 105 Haw. 462, 99 P. 3d 1046 (2004)........................................ 7 Hawaiian Homes Comm'n v. Bush, 43 Haw. 281 (1959). .............................................................. 9 Honolulu Fed. Sav. & Loan Ass'n v. Pao, 4 Haw. App. 478, 668 P.2d 50 (1983). ........................ 9

In re Estate of Rogers, 103 Haw. 275, 81 P.3d 1190 (2003). ......................................................... 6 In re Estate of Searl, 72 Haw. 222, 811 P.2d 328 (1991). .............................................................. 9 Justice v. Fuddy, 125 Haw. 104, 253 P. 3d 665 (2011). ........................................... 6, 7, 11, 12, 13 Kau v. City and County of Honolulu, 104 Haw. 468, 92 P. 2d 3d 477 (2004)............................... 7 Lingle v. Hawai’i Gov’t Emps. Ass’n, AFSCME, Local 152, AFL-CIO, 107 Hawai’i 178, 111 P.3d 587 (2005)............................................................................... 7

Ravelo v. County of Hawai’i, 66 Haw. 194, 658 P. 2d 883 (1983). ............................................... 6 Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S. Ct.524, 61 L. Ed. 1086 (1917). ...................... 16 Southern Pacific Co v. Arizona, 325 U.S. 761, 65 S. Ct. 1515, 89 L. Ed 1915 (1945)................ 16 State of Hawai’i Organization of Police Officers v. Society of Professional Journalists, 83 Haw. 378, 927 P.2d 386 (1996). .............................. 13, 14, 15 Washington v. Dawson & Co., 264 U.S. 219, 44 S. Ct. 302, 68 L. Ed. 646 (1924)..................... 16 Wilart Assocs. v. Kapiolani Plaza Ltd., 7 Haw. App. 354, 766 P.2d 1207 (1988)......................... 9 iii

FR

IE

ND

S

Office of Hawaiian Affairs v. Housing & Community Development Corporation of Hawaii , 117 Haw. 174, 177 P.3d 884 (2008). ................................. 8, 9, 13

OF

FO GB

Hughes v. Oklahoma, 441 U.S. 322, 99 S. Ct. 1727, 60 L. Ed 2d 250 (1979). ............................ 16

OW .C OM

TABLE OF AUTHORITIES (cont’d) Page CASES (cont’d) Wright v. Home Depot, U.S.A, Inc., 111 Haw. 401, 142 P.3d 265 (2006). ................................... 6 CONSTITUTIONS AND STATUTES U. S. CONSTITUTION

Art. I, §8, cl. 3. .................................................................................................................. 16 Art. II, §1, cl. 4............................................................................................................ 14, 15 Art. III, §2, cl. 1................................................................................................................. 16 HAWAI’I CONSTITUTION

Art. 1, secs. 6, 7................................................................................................................. 11 HRS Chapter 92F, Uniform Information Practices Act (UIPA). ................................................ 2, 3
PART I. GENERAL PROVISIONS AND DEFINITIONS

PART II. FREEDOM OF INFORM ATION

FR

HRS Chapter 338, Part I, State Public Health Statistics Act HRS § 338-18. ..................................................................................................... 1, passim

IE

HRS § 92F-11 HRS § 92F-11(a)................................................................................................... 10 HRS § 92F-11(b)................................................................................................... 10 HRS § 92F-12(b)(3).................................................................................................... 11, 12 HRS § 92F-13. ............................................................................................................ 10, 12 HRS § 92F-13(1)............................................................................................. 10, 11 HRS § 92F-13(4)..................................................................................... 10, passim HRS § 92F-14(a)............................................................................................................... 10

ND

S

OF

HRS § 92F-2. .............................................................................................................. 11, 13 HRS § 92F-2(1)..................................................................................................... 11 HRS § 92F-2(5)......................................................................................... 5, passim

FO GB
iv

OW .C OM

TABLE OF AUTHORITIES (cont’d) Page RULES

HRCP Rule 12(b)(6). ...................................................................................................... 4, 5 Hawai’i Rules of Evidence

HRE 201...................................................................................................................... 17, 18

FR

IE

ND

S
v

OF

FO GB

OW .C OM

Hawai’i Rules of Civil Procedure

CAAP-12-0000499 IN THE INTERMEDIATE COURT OF APPEALS STATE OF HAWAII

____________________________________ WILLIAM WOLF, Plaintiff-Appellant, vs. LORETTA FUDDY, in her official capacity as Director of the Department of Health, State of Hawai’i, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL NO. 11-1-2276-09

APPELLANT WILLIAM WOLF’S OPENING BRIEF

APPELLANT WILLIAM WOLF’S OPENING BRIEF COMES NOW Plaintiff - Appellant William Wolf, (“Wolf”), appearing pro se, and

I.

STATEMENT OF THE CASE A. Overview

been the most visible and publicized disclosure in world history regarding one’s record of birth when he released what purported to be a Certificate of Live Birth [a so-called “long-form birth certificate”] obtained from Defendant-Appellee Loretta Fuddy (“Fuddy”), Director of the Hawaii

Months later, Wolf made written application for access to all of Obama’s birth records maintained by Fuddy and the DOH. Two different statutes, enacted at different times, prescribe access to such birth records. The older law, the State Public Health Statistics Act (Health Statistics Act), Hawaii Revised Statutes (HRS) § 338-18, does not entirely protect such records from disclosure, but limits access to twelve (12) categories of expressly enumerated persons 1

FR

IE

State Department of Health (“DOH”).

ND

S

On April 27, 2011, President Barack Obama (“Obama”) orchestrated what may have

OF

pursuant to Hawaii Rules of Appellate Procedure (“HRAP”) Rule 28, files his Opening Brief.

FO GB

OW .C OM

other than the “registrant.” The newer law, the Hawai’i Uniform Information Practices Act (Modified) (UIPA), HRS Chapter 92F, has no limitation based on the identity of the requester. Wolf has never claimed that he is one of those entitled to access under the older law. Yet, when Wolf’s request was denied, only the older law was cited in the denial. Further, the only reason given for denial was that he was not one of that older law’s expressly enumerated persons.

Perhaps that bureaucratic action was not a deliberate subterfuge, but when it comes to Obama’s birth records Fuddy and the DOH have been very myopic. They cling only to the text of the older law, ignoring other applicable principles of law such as disclosure and waiver, and how Obama’s highly publicized disclosure of details about his birth may impact application of the older law. Even a legal novice would question if Obama’s action changed how that older law operates in this case. For example, was the disclosure a waiver that changes the equation? Wolf’s appeal will establish that he is not barred by the older law from access to Obama’s birth records. The text of that law is rendered inapplicable in this case because Obama waived any protection from disclosure which that older law had given him. The corollary is that Wolf has a clear and unobstructed path for access to Obama’s birth records. Alternatively, assuming that the older law remains applicable despite Obama’s disclosure,

incorporates the older law. But a forthright analysis compels (1) overriding of that section which incorporates the older law and (2) the conclusion that the other section, which then requires that

Finally, Wolf’s appeal will establish that federal constitutional law bars any state law or action that prohibits access to a sitting President’s birth records. Accordingly, Wolf is entitled by federal law to access, regardless how either the older or newer state laws are interpreted.

should not be interpreted as having less value or force than his contentions regarding state law. As will be evident, the latter require significantly more exposition. Nor should his federal claim be discounted solely because it is unprecedented. The evolution of constitutional law, as well as the common law, proves that would be a mistake.

FR

IE

The brevity of Wolf’s claim that federal constitutional law compels judgment in his favor

ND

S

Wolf gets access, must govern.

OF

evaluation of two competing sections in the newer law becomes necessary. One section actually

FO GB
2

OW .C OM

B.

Background

By written application to the DOH, Wolf requested access to all of Obama’s birth records, including inspection and the provision of copies thereof. OIP (Office of Information Practices) Form 1, August 30, 2011, Record on Appeal (“ROA”) 22-24. Wolf was notified by written notice that his request was denied in its entirety, citing HRS § 338-18, and stating that Wolf did not have a direct and tangible interest as defined by that statute. OIP Form 4, September 16, 2011, ROA 25-29.

No mention was made in that denial to any UIPA section. Yet, both the application and denial were on pre-printed OIP forms. Further, Wolf was advised in that denial that questions regarding UIPA compliance may be directed to the Office of Information Practices. Perhaps this advisory suggested that the UIPA also prohibited access, but, again, the UIPA was certainly not specified as a reason for denial.

Wolf initiated the instant action in the Circuit Court of the First Circuit by filing a “Complaint to Compel Agency to Disclose Public Records under the Uniform Information Practice Act (UIPA)” against Fuddy, in her official capacity as Director of the DOH, dated September 30, 2011 (“Complaint”) ROA 13-55. Attached to the Complaint and incorporated by reference were multiple exhibits. The text of the Complaint consists of nine pages. ROA 13-21.

subdivided into A, B, C, etc. ROA 22-55.

In his Complaint, Wolf alleged that he had previously requested access to all of Obama’s

administrative remedies. ROA 15. The Complaint stated three causes of action. The first invoked state law, both the UIPA and waiver by Obama that nullified application of HRS § 33818. ROA 17. The second count also invoked state law, but undertook proof of the falsification of

based solely on establishing one fact, which is that Obama is the current President. ROA 20-21.

two counts alleges any falsity. Thus no longer do allegations of falsity as to any documents need be to considered, including those disclosed by Obama. The core issue is access to the birth

FR

On appeal, Wolf is not pursuing the second count in his Complaint. Neither of the other

IE

documents. ROA 17-20. The third count invoked federal constitutional law and claimed access

ND

S

birth records, that his request had been denied, and that he had thus exhausted all required

OF

Though numbered from #1 to #7, there are 12 exhibits, as some are collective exhibits,

FO GB
3

OW .C OM

records maintained by Fuddy and the DOH. Their authenticity or falsity are simply irrelevant for purposes of this proceeding. The factual averments in the Complaint and attached exhibits incorporated by reference establish that Obama sent a letter to Fuddy, dated April 22, 2011, requesting two certified copies of his original certificate of live birth. ROA 15; 31. By letter to Fuddy bearing the same date, Obama’s lawyer requested a waiver of departmental policy, if any, so that Obama could make a certified copy of his original long-form birth certificate publicly available. ROA 15; 33-34. By letter dated April 25, 2011, Fuddy stated that she was issuing to Obama two certified copies of his original Certificate of Live Birth. ROA 15; 38. Two days later, in a news release from the Governor’s office, Fuddy confirmed the details of that correspondence between her and Obama and that two certified copies were delivered in person to Obama’s lawyer. ROA 15; 40-41. The Complaint also establishes that on April 27, 2011, in the White House, Obama personally participated in a disclosure to the entire world of a fully completed long-form certificate of birth that bears his name. ROA 15-16; 43. There was no redaction of any information that was required to be reported on that pre-printed form. Many witnessed the disclosure and heard Obama’s remarks. ROA 45-46. Recording of the event occurred in many forms. ROA 16-17; 48-55. The magnitude of distribution thereof to media and Internet outlets

release in world history of information about one’s birth. That was Obama’s plan; he accomplished what he had planned.

dismiss pursuant to Hawai’i Rules of Civil Procedure (“HRCP”) Rule 12(b)(6) alleging failure to state a claim upon which relief can be granted. A written Order thereof was filed January 27, 2012. ROA 353-355.

judgment motion filed December 1, 2011. ROA 225-226. The other was his “Motion for Relief from Judgment or Order or for Other Relief” (“Motion for Relief”), filed December 20, 2011. At a hearing on that date, both motions were orally denied. The lower court sided with Fuddy’s contention that HRS §338-18 governed, and that Wolf was thereby prohibited from access. Reporter’s Transcript, January 12, 2012, at pages 22-23. Written orders denying Wolf’s Motion 4

FR

IE

As of January 12, 2012, two motions by Wolf were pending. One was his summary

ND

S

At a hearing on December 8, 2011, the lower court orally granted Fuddy’s motion to

OF

warrants describing Obama’s premeditated disclosure as perhaps the most visible and extensive

FO GB

OW .C OM

for Relief and summary judgment motion were not filed until April 25, 2012. ROA 363-364; 357358. On that same date, the lower court filed a “Final Judgment as to All Claims and All Parties” (“Final Judgment”). April 25, 2012. ROA 359-362. On May 14, 2012, a “Notice of Appeal”, including Exhibits A–C, was filed by Wolf. ROA 365-380. II. POINTS OF ERROR

No written findings of fact were issued by the lower court; nor were any written

conclusions of law, except the rulings granting Fuddy’s motion to dismiss the Complaint, denying Wolf’s summary judgment motion, and denying Wolf’s Motion for Relief. Those rulings are shown by the Final Judgment, filed April 25, 2012. ROA 359-362. The Final Judgment simply repeats written orders issued by the lower court, which documented its oral rulings on motions heard December 8, 2011 and January 12, 2012. The errors in those rulings and Final Judgment include the following: A.

Granting Defendant’s Motion to Dismiss under HRCP Rule 12(b)(6)

The lower court erred when it dismissed the Complaint due to the following, individually and collectively:

established, as statutory protections granted to persons by HRS § 338-18 can be waived by them;

establish a waiver that renders HRS § 338-18 inapplicable to Wolf’s request for access to Obama’s birth records; (c) It erroneously concluded that UIPA § 92F-2(5) cannot be applied whenever the

FR

IE

text of HRS § 338-18 also covers the factual situation;

(d) It erroneously concluded that the Complaint failed to allege sufficient facts to establish that UIPA § 92F-2(5) entitles Wolf to access Obama’s records;

(e) It erroneously enabled state law and state action, in violation of federal constitutional law, to obstruct and prohibit access to the birth records of the current President of the United States; and 5

ND

S

(b) It erroneously concluded that the Complaint failed to allege sufficient facts to

OF

(a) It erroneously applied only the text of HRS § 338-18 when waiver was alleged and

FO GB

OW .C OM

(f) It erroneously failed to conclude that the Complaint alleged sufficient facts to establish that the federal Constitution entitles Wolf to access Obama’s birth records. B. Denying Plaintiff’s Motion for Summary Judgment

The lower court erred when it denied Wolf’s summary judgment motion because:

(a) It is factually indisputable that Obama is the current President of the United States and that this fact alone enables Wolf to access Obama’s birth records under federal constitutional law;

(b) It is factually indisputable that Obama waived the statutory protection given him by HRS § 338-18 and thus that statute cannot be applied to bar Wolf’s request for access; and

(c) It is factually indisputable that Obama’s action on April 27, 2011 diminished his confidentiality interest in his birth records and that it would clearly not be an unwarranted invasion of Obama’s privacy for Wolf to access said birth records pursuant to UIPA § 92F-2(5). III. STANDARDS OF REVIEW A.

Motion to Dismiss Complaint

novo. Wright v. Home Depot, U.S.A, Inc., 111 Haw. 401, 406, 142 P.3d 265, 270 (2006). A complaint should not be dismissed for failure to state a claim unless it appears beyond

relief. In re Estate of Rogers, 103 Haw. 275, 280-81, 81 P.3d 1190, 1195-96 (2003). Plaintiff’s complaint must be viewed in a light most favorable to him in order to determine whether the allegations therein could warrant relief under any alternative theory. E.g.

Haw. 104, 107, 253 P.3d 665, 668 (2011) (“Justice”).

and County of Honolulu, 98 Haw. 233, 244, 47 P.3d 348, 359 (2002) (“Coon”).

FR

B.

Review of a lower court’s grant or denial of summary judgment is de novo. Coon v. City

IE

Ravelo v. County of Hawaii, 66 Haw. 194, 199, 658 P.2d 883, 886 (1983); Justice v. Fuddy, 125

Motion for Summary Judgment

ND

S

doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to

OF

A trial court’s ruling on a motion to dismiss under HRCP Rule 12(b)(6) is reviewed de

FO GB
6

OW .C OM

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing one of the essential elements of a cause of action. The evidence must be viewed in the light most favorable to the non-moving party. Kau v. City & County of Honolulu, 104 Haw. 468, 473-74, 92 P.3d 477, 482-83 (2004). Coon, supra at 244, 359.

The burden is on the party moving for summary judgment to show the absence of any genuine issue as to all material facts, which under applicable principles of substantive law entitles the moving party to judgment as a matter of law. This burden has two components. First, the moving party has the burden of producing support for its claim that no genuine issue of material fact exists with respect to the essential elements of the claim that the motion seeks to establish. Second, the moving party bears the ultimate burden of persuasion. That burden always remains with the moving party. French v. Hawaii Pizza Hut, Inc., 105 Haw. 462, 470, 99 P.3d 1046, 1054 (2004). C.

Statutory Interpretation

Questions of statutory interpretation are issues of law to be reviewed de novo under the right/wrong standard. Lingle v. Hawai’i Gov’t Emps. Ass’n, AFSCME, Local 152, AFL-CIO,

IV.

ARGUMENT A.

The Text of HRS § 338-18 Does Not Apply When a Person Waives the Right to Confidentiality Given to Him by Said Statute 1. HRS § 338-18 Creates a Legally Protected Interest

HRS § 338-18 (hereinafter “338-18”), a part of the Health Statistics Act, authorizes the DOH to collect, compile and preserve birth records. Subsection (a) thereof makes it unlawful for

adopted by the DOH. Subsection (b) thereof specifically prohibits the DOH from permitting the inspection or issuing copies of birth records, unless the applicant is within one of 13 enumerated categories of persons. Justice, supra at 109, 670. Thus the DOH has a statutory duty and responsibility to avoid legally unauthorized

disclosure. The corollary is creation by 388-18 of a legally protected interest in the person often 7

FR

IE

any person to access vital statistics records unless authorized by the Health Statistics Act or rules

ND

S

OF

107 Hawai’i 178, 183, 111 P.3d 587, 592 (2005).

FO GB

OW .C OM

called the “registrant,” whose birth record is collected and maintained by the DOH. Unlike other records collected by public agencies, the registrant in birth records, the child, is for obvious reasons not the one who filed or reported the required information. 2. The Nature and Characteristics of the Protected Interest

Is that protected interest a right; a shield; a privilege? Or better described using some other legal jargon? While it might be interesting to ponder and debate that question, Wolf will assume that it is a right and refer to it accordingly. After all, it is legally enforceable, and calling it a “right” puts it at the top of the legal hierarchy of such labels.

What does that right protect? Privacy; confidentiality of general details about one’s life that everybody has in their background, many of which are published in newspapers around the time of birth? Everyone was born (1) on a date, (2) at a time of day, (3) at a location, (4) was a certain length and (5) weight. Of course, all had a mother. More mundane statistics about every birth, although unique to the individual, can be listed and must be reported to the DOH. It is obvious that the information collected and maintained in birth records is at the low end of the spectrum when contrasted with one’s medical records, financial records, employment records, arrest records, and many other records containing personal information which might be misused so as to prejudice the registrant. This is evident in that birth records can be released as a

persons listed under 338-18(b). Birth records simply do not contain the innermost secrets and intimate details that can embarrass or humiliate. Nor do they contain sensitive information that is

Nevertheless, birth records are protected to a limited degree by the obligations created by 338-18, which codifies how such information is filed, handled and released. The result is confidentiality of birth records, albeit with some connotation of privacy. Accordingly, Wolf will

IE

hereafter refer to it as a limited right to confidentiality as to one’s birth records. 3. A Statutory Right Can be Waived

Office of Hawaiian Affairs v. Housing & Community Development Corporation of Hawaii , 117 Haw. 174, 201, 177 P.3d 884, 911 (2008) (HCDCH); Coon, supra at 261, 376. To constitute a waiver, there must have been a right, which the waiving person actually or constructively knew 8

FR

Waiver as a common law principle is an intentional relinquishment of a known right.

ND

S

generally associated with notions of individual privacy.

OF

matter of right to a number of persons other than the registrant, the twelve (12) other categories of

FO GB

OW .C OM

existed at the time of the alleged waiver. HCDCH, supra; Coon, supra; Honolulu Fed. Sav. & Loan Ass'n v. Pao, 4 Haw. App. 478, 484, 668 P.2d 50, 54 (1983). A waiver may be established by express statement, or by acts and conduct from which an intent to waive can be reasonably inferred. HCDCH, supra; Coon, supra; Wilart Assocs. v. Kapiolani Plaza Ltd., 7 Haw. App. 354, 359-60, 766 P.2d 1207, 1210-11 (1988).

Whether or not a waiver occurred is generally a question of fact, but when the facts are undisputed it may become a question of law. HCDCH, supra; Coon, supra at 261-62, 376-77; Hawaiian Homes Comm'n v. Bush, 43 Haw. 281, 286 (1959); In re Estate of Searl, 72 Haw. 222, 226-27, 811 P.2d 328, 831 (1991).

Nothing in 338-18 or the Health Statistics Act prohibits waiver by the registrant of his right to confidentiality of his birth records. Nor is there any other state law or judicial decision that prohibits such waiver.

Wolf has found nothing in 338-18 or the Health Statistics Act that authorizes or prescribes how waiver of that right to confidentiality may be effectuated or occur. To forestall any such contention by Fuddy, legislative silence in no way detracts from one’s ability to waive his 338-18 right to confidentiality.

By analogy, the federal Constitution and Bill of Rights are silent regarding waiver of the

anything about waiver. Yet in countless cases daily throughout the nation, in its courts, police stations, and on the streets, those fundamental and cherished rights are repeatedly waived. To

because of legislative silence would be absurd. 4.

It is elementary that if a right is waived the legal consequence is to not apply the law that

the protection given by that right is no longer applied. For example, when the right to jury trial is waived, there is no jury trial. The result is no different when a statutory right is waived. Waiver of the right created by a statute eliminates application of the statute.

FR

IE

is the source of that right. Again, by analogy to the waiver of a right created by the Bill of Rights,

ND

Waiver of a Statutory Right Stops Application of the Statute

S

suggest that waiver of the statutory right to confidentiality created by 338-18 could not occur

OF

many fundamental and cherished rights created by those laws. Nothing in the text of either says

FO GB
9

OW .C OM

5.

The Complaint Alleges Sufficient Facts to Render § 338-18 Inapplicable

Fuddy has never addressed the issue of how the waiver in this case can impact the administration of 338-18. Once it is judicially determined that the substantive law does provide that a waiver can render the text of 338-18 inapplicable, the issue becomes whether the Complaint has alleged sufficient facts to establish such waiver.

At that point, there is no question about the sufficiency of facts alleged in the Complaint to establish waiver. Indeed, the facts alleged in the Complaint are indisputable. Accordingly, Obama’s right to 338-18 confidentiality, as a matter of law, has been waived. The corollary, as Wolf contends in his argument regarding summary judgment, infra, is that Wolf is entitled to immediate judgment for access to Obama’s birth records. B.

Alternatively, the UIPA Requires Access by Wolf to Obama’s Birth Records 1. Conflict Between Pertinent UIPA Sections Regarding Disclosure

Part II of the UIPA, HRS §§ 92F-11 through 92F-19, is entitled “Freedom of Information.” § 92F-11 sets forth the general responsibilities of state government agencies to make records available for inspection and copying. Subsection (a) of that section provides “[a]ll government records are open to inspection unless access is restricted or closed by law.”

any person shall make government records available for inspection and copying during regular business hours [.]”

those five exceptions could possibly pertain to Wolf’s request. Section 92F-13 provides: “Government records: exceptions to general rule. This part shall not require disclosure of: (1) Government records which, if disclosed, would constitute a clearly unwarranted invasion of

protected from disclosure [.]” As to the privacy exception, § 92F-14(a) requires considering the public’s interest in disclosure by providing that “[d]isclosure of a government record shall not constitute a clearly unwarranted invasion of personal privacy if the public interest in disclosure outweighs the privacy interest of the individual.”

FR

IE

personal privacy; . . . (4) Government records which, pursuant to state or federal law . . . are

ND

S

Section 92F-13 has five exceptions to Part II’s general rule of disclosure. Only two of

OF

Subsection (b) provides “[e]xcept as provided in section 92F-13, each agency upon request by

FO GB
10

OW .C OM

Fuddy has not invoked the UIPA to block Wolf’s request. Strategically, as will become quite evident, Fuddy’s only UIPA option is § 92F-13(4). Wolf invokes Part I of the UIPA, including but not limited to § 92F-2(5). In pertinent part, § 92F-2 provides: “Purposes; rules of construction. . . . The policy of conducting government business as openly as possible must be tempered by a recognition of the right of the people to privacy, as embodied in section 6 and section 7 of Article 1 of the Constitution of the State of Hawaii. This chapter shall be applied and construed to promote its underlying purpose and policies which are to: (1) Promote the public interest in disclosure; . . . (5) Balance the individual privacy interest and the public access interest, allowing access unless it would constitute a clearly unwarranted invasion of personal privacy.”

Ironically, Wolf invokes and relies on a UIPA section whose language corresponds to the UIPA’s privacy exception that is often employed to forbid access. Fuddy’s declination to invoke § 92F-13(1) – the privacy exception – and deal with that language, would not be an oversight. 2. Scrutiny and Evaluation of Justice v. Fuddy

Any discussion or resolution of Wolf’s appeal must scrutinize and evaluate Justice, supra. It is not just the most pertinent appellate case. Fuddy is again the defendant – appellee. The Attorney General is again her attorney. Obama’s birth records are again being sought. Both 338-

Justice provides considerable guidance. But it is not dispositive of any of Wolf’s theories for access under state law, even though Justice squarely held that 338-18 defeated Dr. Justice’s

The plaintiff in Justice relied on UIPA § 92F-12(b)(3), hereafter § 12(b)(3), to obtain access. Fuddy contended 338-18 barred access, as that plaintiff did not come within one of the 13 enumerated categories. Before deciding the case, the appellate court discussed several important

First, Fuddy (and the Attorney General) advocated that 338-18, an older law than the UIPA, was incorporated into § 92F-13(4), hereafter § 13(4), which is one of the five statutory exceptions to UIPA’s general rule that all government records are open to public inspection. Fuddy’s statutory interpretation was accepted. Justice, supra at 111, 672. Thus § 13(4) and 33818, hereinafter “§ 13(4)/338-18,” are synonymous. 11

FR

IE

points.

ND

S

request for access to Obama’s birth certificate.

OF

18 and the UIPA are again focal points.

FO GB

OW .C OM

Second, when that plaintiff contended that § 12(b)(3) was nevertheless controlling, the appellate court said his argument, in effect, was that § 12(b)(3) overrides § 13(4)/338-18. The court explicitly recognized that two UIPA sections could provide conflicting directions on which one should prevail when a request for records satisfied the criteria of both sections. Justice, supra at 111, 672.

Justice, however, found it unnecessary to decide if one UIPA section may override another UIPA section. The proofs simply did not meet the criteria for application of § 12(b)(3) as invoked by that plaintiff,. This left only § 13(4)/338-18 and thus it was applied. Justice, supra at 111-12, 672 -73.

Therefore, from Justice, the following conclusions are submitted: 1.

Justice did not consider and thus did not decide Wolf’s claim that waiver can render 338-18 inapplicable, see IV.A., supra; Justice held that 338-18 is incorporated in (subsumed by) § 13(4); Justice held that it is unnecessary to consider override if the criteria of only one UIPA section is established; Justice signaled that override could be a judicially declared rule of law used to decide which of two conflicting UIPA sections should be given precedence, so long as the criteria of each section was established; and Justice did not mention any legislative override mechanism codified in the UIPA, whether § 92F-2(5) or any other section.

2. 3.

4.

5.

Given the holding in Justice that 338-18 is incorporated in (subsumed by) § 13(4), Wolf must overcome two hurdles before his invocation of § 92F-2(5) is relevant. One is that the criteria of that section are met. The other is the issue of override left undecided by Justice. If an

the UIPA, to discuss whether Wolf met the criteria of § 92F-2(5) is irrelevant. Thus that question is deferred, pending resolution of the permissibility of an override. Per the UIPA, application of § 13(4)/338-18 to prohibit access is not necessarily a one-

step process. § 92F-13 explicitly states: “[t]his part shall not require disclosure of . . . records” within the five enumerated exceptions to the general rule of disclosure provided by § 92F-11. 12

FR

IE

override by one section over another section would never be permissible in a case arising under

ND

S

3.

The UIPA Codified An Override Mechanism

OF

FO GB

OW .C OM

The legislature’s use of “part,” not “chapter,” confines the supremacy of that directive to Part II of the UIPA. This combines with the mandate of Chapter 92F which explicitly states in § 92F-2: “[t]his chapter shall be applied and construed to promote its underlying purposes and policies . . . .” The legislature’s use of “chapter,” not “part,” makes Part II of the UIPA subordinate to § 92F-2. “It is well settled that, [w]hen construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.” HCDCH, supra, at 191, 901. (citations omitted).

The legislature unequivocally authorized, under appropriate circumstances, a two-step process to determine if disclosure of a record should be made. A preliminary determination under Part II is not always final. When appropriate, a further evaluation and decision under Part I can reverse that preliminary determination. In other words, the UIPA obviously contains a codified override mechanism. 4.

Parameters of the Privacy Interest Protected by the UIPA

State of Hawaii Organization of Police Officers v. Society of Professional Journalists, 83

the "privacy interest" protected by the UIPA. It contains an extensive discussion of this right, including historical excerpts from prior case law and legislative committee reports.

legislative intent if any dispute arose. Specifically, SHOPO quoted the following committee language: "once a significant privacy interest is found, the privacy interest will be balanced against the public interest in disclosure. If the privacy interest is not significant, a scintilla of

at 383-84, 391-92. The court also recognized prior case law that only highly personal and intimate information, such as medical, financial, educational, and employment records are within the scope of the state constitutional right to privacy. Id. at 398-99, 406-07.

FR

IE

public interest will preclude a finding of a clearly unwarranted invasion of personal privacy." Id.

ND

S

For example, a 1988 committee report was cited for its avowed purpose to provide clear

OF

Haw. 378, 927 P.2d 386 (1996) ("SHOPO") is the leading case discussing what is encompassed in

FO GB
13

OW .C OM

Throughout SHOPO, the privacy interest codified in the UIPA is equated with and compared to the state constitutional right to privacy. Perhaps the two are coextensive and the same. But SHOPO neither decided nor addressed that issue. This is significant because Justice upheld Fuddy's position that the UIPA in § 13(4) incorporated 338-18. But the information in birth records certainly is not within the scope of the constitutional right to privacy. So the question is if that incorporation of 338-18 transformed a right to confidentiality of birth records into a privacy interest protected by the UIPA. Or did that incorporation simply overlay a statutory right to confidentiality atop a constitutional right to privacy? The question is a legitimate one. But Wolf demonstrates, infra, that the question is academic under the circumstances of this case. 5.

Evaluating All Scenarios, Wolf Must Prevail Under Each

Two scenarios must be considered in determining if Wolf has established the criteria of § 92F-2(5) and, if so, how that impacts Wolf's request for access. The premise of the first scenario is that the privacy interest protected by the UIPA is co-extensive with, and the same as, the constitutional right to privacy. As birth records are not within the scope of that constitutional right, there would be no (zero) invasion of Obama's personal privacy by allowing Wolf to access his birth records. This differs from a "warranted"

weighing of public interest. Regardless, that statutory element is easily established by recognizing the legitimate interest of the public in whether or not Obama meets the constitutional

Under this first scenario, nothing further is necessary to decide Wolf's UIPA request. Section 92F-2(5) applies, while § 13(4)/338-18 has no legal effect because the incorporation of Obama’s 338-18 limited right to confidentiality as to his birth records was not transformed into a

Assume, arguendo, that the incorporation of the 338-18 right to confidentiality, even though not within the constitutional right to privacy, added birth records to the privacy interest protected by the UIPA. This second scenario requires an analysis to determine if the criteria of § 92F-2(5) are established. If the answer is affirmative, then the issue of override not decided in Justice must be addressed and decided. 14

FR

IE

constitutional right of privacy.

ND

S

eligibility requirements to be President. See U.S. Const., Art. II, §1, cl. 4, infra.

OF

invasion of privacy within the meaning of § 92F-2(5), and thus arguably dispenses with any

FO GB

OW .C OM

Examining and balancing Obama's privacy interest versus the public interest in further disclosure of his birth records is profoundly impacted by Obama's prior world-wide disclosure. What would have been the result of a balancing inquiry before April 27, 2011 is purely academic. Any privacy interest Obama had before that date was substantially diminished, if not totally eviscerated, by his public disclosure on a world-wide stage. Thus, even if it is assumed that complete waiver by Obama did not occur, it is difficult to envision what remains of what never was a significant privacy interest.

Turning to the public interest in Obama's birth records, it is more than just a "scintilla." See SHOPO, supra. Those records shed light on Obama's compliance with his obligation to abide by federal constitutional prerequisites to occupy our nation's highest office. There can be no doubt that the public's interest in disclosure outweighs whatever diminutive privacy interest Obama may still have in his birth records.

Under such circumstances, the criteria of § 92F-2(5) for disclosure are established; allowing Wolf to access Obama's birth records would not constitute a clearly unwarranted invasion of Obama's personal privacy.

The only remaining question is whether § 92F-2(5) should override § 13(4)/338-18. Implementation of how the UIPA shall be applied and construed, as mandated in § 92F-2,

Justice. Unquestionably, Wolf is entitled by law to access Obama's birth records. C. The Federal Constitution Prohibits Any State Law or State Action Which Denies or Obstructs Access to a Current President’s Birth Records

The United States Constitution provides “No person except a natural born Citizen . . . shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within

This constitutional provision is self-executing. It operates of its own force. No legislation is necessary for its operation, either at the federal or state levels. The Eligibility Clause is not just a list of three requirements. Within its scope are the

current President, Vice President, and any candidate for those offices. Its full operative effect

FR

IE

the United States.” U.S. Const., Art II, §1, cl. 4.

ND

S

OF

unequivocally leads to only an affirmative answer. So does the intuitive foresight signaled in

FO GB
15

OW .C OM

assures unfettered public access to all records and information pertinent to whether those persons within its scope meet the three requirements. There are other federal constitutional provisions that are self-executing and limit state power, even though no Congressional statute exists. One example is the Commerce Clause, Art. I, §8, cl. 3., which does more than give Congress the power to regulate commerce. It also limits state power, even when Congress has done nothing. In other words, state laws can be struck down solely because they violate federal power inherent in the Commerce Cause. E.g., Hughes v. Oklahoma, 441 U.S. 322, 99 S. Ct. 1727, 60 L. Ed. 2d 250 (1979); Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S. Ct. 1515, 89 L. Ed. 1915 (1945).

Cases of admiralty and maritime jurisdiction are another example. The Constitution placed those cases within the federal judicial branch. Art III, §2, cl. 1. The result is limits on state power, even without a federal statute. Again, state laws can be struck down solely because they violate federal power inherent in that Article III provision. E.g., Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S. Ct. 524, 61 L. Ed. 1086 (1917); Washington v. Dawson & Co., 264 U.S. 219, 44 S. Ct. 302, 68 L. Ed. 646 (1924).

The question in such commerce and admiralty cases is which, between competing federal constitutional provisions and state laws or other state actions, governs an activity or transaction.

Phrases such as “national interest” versus “local concern” tend to be used to define and decide that issue.

activity or transaction. There is no competing “local concern.” Nor could there be. Federal power is limited by the Eligibility Clause. No federal law or action, whether by legislation, executive order, or administrative regulation, can change or modify the three

Inherent in the Eligibility Clause are further limits on federal power. Suppose Congress enacted a law that restricted public access to the birth records of the President, Vice-President, or candidates for those two offices. Would that be a lawful exercise of federal power? Of course not. A fortiori, the states, including Hawai’i, have no greater power.

FR

IE

requirements. Only a constitutional amendment could do so.

ND

S

The Eligibility Clause is obviously different from the foregoing. It governs a federal

OF

Resolving that constitutional issue requires drawing a line between federal and state power.

FO GB
16

OW .C OM

The Complaint, specifically Count 3, alleged sufficient facts to establish that the federal Constitution precludes Fuddy from denying Wolf access to Obama’s birth records. Obama was the President when Wolf made his original request to the agency headed by Fuddy. He is still the President and thus has been within the scope of the self-executing Eligibility Clause throughout Wolf’s efforts to obtain Obama’s birth records. There is only one operative or adjudicative fact that Wolf needs to prove, if his interpretation of the federal Constitution is upheld. Obviously, the fact to prove is that Obama is President. There should be no doubt that Wolf can prove that fact.

Indeed, as Wolf contends in his argument regarding summary judgment, infra, that fact is indisputable and should be the subject of mandatory judicial notice by this court pursuant to Hawaii Rules of Evidence (“HRE”) 201. D.

Wolf is Entitled to Summary Judgment Forthwith – No Remand Is Necessary

This appeal presents a unique situation. In AFL Hotel & Restaurant Workers Health & Welfare Trust Fund v. Bosque, 110 Haw. 318, 132 P. 3d 1229 (2006) (“Bosque”), the Hawaii Supreme Court did not preclude entry of a summary judgment by an appellate court, so long as the trial court had denied summary judgment.

Procedurally, Wolf’s case parallels Bosque. Both involve lower court dismissals of a

judgment motion. In Bosque the lower court dismissed the motion as moot rather than ruling on its merits. By contrast, Wolf’s was denied on the merits. ROA 359-362; 357-358.

judgment in Wolf’s favor. Further, Wolf is entitled to summary judgment, on either or both his federal (Count 3) and state (Count 1) theories. If Wolf’s appeal is sustained and the lower court’s dismissal of the Complaint is reversed, no remand is necessary.

was erroneously dismissed by the lower court, Wolf only has to prove that Obama is the current President to be entitled to judgment on his request for access. That adjudicative fact is indisputable and should be the subject of mandatory judicial notice by the court pursuant to HRE 201. Nothing more is necessary from Wolf and summary judgment should accordingly be entered in his favor. 17

FR

IE

Specifically, if it is decided that Count 3 of the Complaint has stated a cause of action and

ND

S

Thus, pursuant to Bosque, this court has jurisdiction to consider and grant summary

OF

complaint. They differ however, as to the lower court’s disposition of the plaintiff’s summary

FO GB

OW .C OM

Count 1 is not as simple because it is not a “one fact case.” Also, Wolf has demonstrated more than just one path for access under state law. There are multiple scenarios. But that does not mean that summary judgment for Wolf at the appellate level cannot be granted. Perhaps an oversimplification, but one theory under Count 1 is essentially a “two fact case.” One fact is an exhibit, which is a copy of a Hawaiian birth certificate of a person named Barack Obama. The other fact is that Obama publicly disclosed it. Wolf’s position is that those two facts are indisputable and/or subject to judicial notice. Further, those facts establish a waiver by the registrant, which is a conclusion of law. The waiver defeats application of § 13(4)/338-18, another conclusion of law. Finally, Wolf has carried his burden of persuasion entitling him to access to Obama’s birth records, another and final conclusion of law.

Wolf’s position, however, regarding summary judgment based on Count 1 is not limited to that example. Rather, it is that the collective facts alleged in the Complaint regarding Obama’s disclosure on April 27, 2011 are indisputable adjudicative facts, whether the result of mandatory or discretionary judicial notice by this court pursuant to HRE 201. Those facts establish the following conclusions of law:

1. Obama waived the statutory protection given him by 338-18 and thus that statute cannot be applied to bar Wolf’s request for access;

3. If 338-18 (§ 13(4)/338-18) does apply, it is nevertheless overridden and trumped by § 92F-2(5) and Wolf is thereby entitled to access Obama’s birth records.

whatever vestige may remain after Obama’s much ballyhooed disclosure, of what originally was only a minimal right to confidentiality anyway, should prevail absolutely over the strong legislative policy promoting freedom of information that is embodied in the overall Hawai’i statutory scheme. This is particularly true under the indisputable circumstances here, with a “public interest” far, far, broader than that ever shown before in any Hawaiian “public health statistic.” The documents evidencing Fuddy’s collaboration with Obama to publicly disclose his purported long-form birth certificate acknowledge the magnitude of the public interest [ROA 15;

FR

IE

ND

are unquestionably not highly personal and intimate. It would be ludicrous to suggest that

S

Most vital statistics records, such as birth records and the information contained in them,

OF

2. It would not be an unwarranted invasion of Obama’s privacy for Wolf to access Obama’s birth records pursuant to § 92F-2(5); and

FO GB
18

OW .C OM

31; 33-34; 38; 40-41], and the execution of their plan forever shredded any claims of confidentiality or privacy as to Obama’s birth records. Therefore, besides immediate summary judgment for Wolf based on Count 3, immediate summary judgment based on Count 1 should also be granted. V. CONCLUSION

Up to now, Fuddy’s position has been akin to that of a surrogate who has locked the barn door after the owner released his horse. The time has come for a forthright and specific reply to Wolf’s request.

For the reasons set forth herein, this Court should reverse the dismissal of the Complaint, grant summary judgment to Wolf, and issue an order to Fuddy that Wolf be allowed access to inspect all birth records of Barack Obama and obtain copies thereof.

Dated: Eatontown, New Jersey

October 9, 2012

FR

IE

ND

S
19

OF

FO GB

/s/ William Wolf William Wolf Pro Se

OW .C OM

Sign up to vote on this title
UsefulNot useful