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DAVIDM. LOUIE Attorney General, State ofHawai'i 2162
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HEIDI M. RIAN 3473 JILL T. NAGAMINE 3513 REBECCA E. QUINN 8663 Deputy Attorneys General 465 South King Street, Room 200 Honolulu, Hawaii 96813 Telephone: (808) 587-3050 Facsimile: (808) 587-3077 Email: Jill.T.Nagamine@hawaii.gov Attorneys for Loretta Fuddy Director of Health, State of Hawaii and Dr. Alvin T. Onaka, State Registrar of the Department of Health, State of Hawaii
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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII DR. ORLY TAITZ, ESQ., Plaintiff, vs. LORETTA FUDDY IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE DEPARTMENT OF HEALTH, STATE OF HAW AIl, DR. ALVIN T. ONAKA, IN HIS OFFICIAL CAPACITY AS THE REGISTRAR, DEPARTMENT OF HEALTH, STATE OF HAWAII, Defendants. CIVIL NO. 11-1-1731-08 RAN DEFENDANTS' MEMORANDUM IN REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS PETITION FOR WRIT OF MANDAMUS; CERTIFICATE OF SERVICE HEARING DATE: TIME: JUDGE:
October 12, 2011 8:30 Hon. Rhonda A. Nishimura
DEFENDANTS' MEMORANDUM IN REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS PETITION FOR WRIT OF MANDAMUS
Loretta Fuddy, Director of Health, State of Hawai'i and Dr. Alvin T. Onaka, Registrar, Department of Health, State ofHawai'i ("Defendants") by and through their attorneys, David M.
Louie, Attorney General, and Heidi M. Rian, Jill T. Nagamine, and Rebecca E. Quimi, Deputy Attorneys General, submit this memorandum in reply to Plaintiffs motion to dismiss. I. DISCUSSION Defendants filed their motion to dismiss asserting that Plaintiffs Petition for a Writ of opposition to the Defendants'
Mandamus Request for Inspection of Records under United (Sic) Information Practices Act Statute 92F, State of Hawaii, filed on August 10,2011 ("complaint") should be dismissed for lack of jurisdiction (subject matter and personal), for insufficiency of process, and for Plaintiffs failure to state a claim upon which relief can be granted. Plaintiff has filed her Opposition to Motion to Dismiss Petition for Writ of Mandamus ("Memorandum") arguing that the Defendants' motion to dismiss be denied.' Plaintiffs
memorandum does not provide any legal basis to allow this Honorable Court to deny Defendants' motion to dismiss. II. DISCUSSION A. Hawaii State Law Prohibits Disclosure of Records sought by Plaintiff.
Plaintiff seeks President Barack Obama's (president's) birth certificate because she claims that it is somehow important to proving her claim that is pending in the United States District Court, District of Columbia, titled Orly Taitz v. Michael Astrue, Commissioner of the Social Security Administration, Case No. 11-cv-00402 RCL wherein she appeared to be alleging that the President's social security number is invalid. Chief Judge Royce C. Lamberth (Judge Lamberth) granted summary judgment in favor of the government on August 30, 2011 and Plaintiff subsequently filed a motion for reconsideration that is still pending.
memorandum was not received by Defendants until October 5, 2011.
a. The "compelling circumstances" provision of section 92F-12(b)(3), HRS, does not override either section 338-18, HRS, or section 92F-13, HRS, but even if it did, Plaintiff has not shown that compelling circumstances exist in this case. Plaintiff contends that she is entitled to the President's birth certificate based on the "compelling circumstances" provision ofHRS § 92F-12(b)(3)2. Defendants argue that Section 92F-12(b)(3), HRS, does not override either section 338-18, HRS, or section 92F-13, HRS. Section 92F-12, HRS, provides a non-exclusive list of records and categories of records that agencies must disclose. Section 92F-12(b )(3) relied upon by Plaintiff, provides: (b) Any provision to the contrary notwithstanding, each agency shall also disclose: ... (3) Govenunent records pursuant to a showing of compelling circumstances affecting the health or safety of any individual. HRS §92F-12(b)(3). Section 92F-12(b )(3) is not an alternative means of gaining access to records protected from disclosure by section 338-18. Section 92F-12(b)(3) may not be read or interpreted independently of the rest of chapter 92F. Section 92F -13 clearly limits any interpretation of the scope of section 92F-12(b)(3): Government records; exceptions to general rule. This part [i.e. chapter 92F, part II, entitled, Freedom of Information] shall not require disclosure of: ... (4) Government records which, pursuant to state or federal law including an order of any state or federal court, are protected from disclosure; .... HRS §92F-13(4) (Emphasis added). Section 92F-12(b )(3), the section relied upon by Plaintiff, is a section in chapter 92F, part II, and thus, is clearly limited by the language in section 92F-13, HRS. While it might appear that there is an ambiguity between section 92F-12(b), which begins: "[ajny provision to the contrary notwithstanding, each agency shall also disclose" and section 92F-13, which begins: n[t]his part shall not require disclosure ... ", there is no
ambiguity. Principles of statutory construction require that all provisions of the statute (VIP A)
complaint makes no reference to this provision being applicable to her case.
be read in the context of other provisions of the statute. When sections 92F-l1, 92F-12, and 92F -13 are read together there is no ambiguity, because in their entirety they provide the rule that government records are generally open and the exceptions to that rule, including exceptions provided by law (such as section 338-18, HRS). In Kam v. Noh, 70 Haw. 321, 770 P.2d 414 (1989), the Hawaii Supreme Court was tasked with sorting out alleged ambiguities in land use restrictions and height restrictions in the law that gave rise to litigation between two property owners. In parsing out the use restrictions, which had expired, from the height restrictions, which had not, the Hawaii Supreme Court drew upon principles of statutory construction. It is a generally accepted principle of statutory construction that "[l]aws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another." 70 Haw. 321, 325, 770 P.2d 414,417 (1989) (emphasis and citations omitted). Moreover, the rule that statutes "in pari materia" should be construed together has the • greatest probative force in the case of statutes relating to the same subject matter passed at the same session of the legislature, especially if they were enacted on the same day. 70 Haw. 321, 326, 770 P.2d 414, 417 (1989) (citations omitted). We have repeatedly recognized that one provision of a comprehensive statute should be read in context of other provisions of that statute and in light of the general legislative scheme. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. 70 Haw. 321, 326, 770 P.2d 414, 417-418 (1989) (emphasis in original, citations omitted). When all of the provisions of chapter 92F, HRS, are construed in the context of the other provisions, there is no ambiguity, and the result is that the exceptions to disclosure provided by both section 92F-ll and section 92F-13 preclude the categories of records found in section 92F-
12, (e.g. compelling circumstances) from overriding the explicit confidentiality provisions found elsewhere in state law (e.g. section 338-18, HRS). Even ifthis court is of the opinion that government records shall be disclosed pursuant to
a showing of compelling circumstances affecting the health or safety of any individual, Plaintiff has shown no compelling circumstances affecting her health or safety that justify disclosure of the President's birth certificate nor has she claimed to have suffered any actual or threatened injury. In her memorandum, Plaintiff makes unsupported allegations in support of her claim that "compelling circumstances" exist by stating that the disclosure of the President's birth certificate is a matter of "obvious national importance". She does not provide references to substantiate her In Justice v. Fuddy, 125
concerns nor does she explain how her health or safety is affected.
Haw. 104,253 P.3d 665, the court held that the "compelling circumstances" provision ofHRS § 12-(b)(3) is directed at requiring access to records in medical or safety emergency situations. Id. at 105,665. Plaintiffs bare assertions clearly do not qualify as "compelling circumstances".
Plaintiff also contends that the Office of Information Practices ("OIP") opinion cited by Defendants and found at OIP Op. No 90-23, 1990 WL 482371 (the Opinion) is not binding on this court. The Opinion interpreted the restricted access provisions of section 338-18, HRS, and its conclusions substantiate that the list in section 338-18(b) is an exclusive list. Plaintiff fails to note that agency determinations, such as OIP opinions, are accorded deference by the courts if
the determination involves a particular matter that the legislature has given the agency discretion over. Olelo: The Corp. for Community Television v. Office of Information Practices, 116 Haw. 337, 173 P.3d 484 (2007). Further, the legislature created the Office of Information Practices in 1988, (see section 92F-41, HRS), and codified its powers and duties in section 92F-42, HRS. Among its responsibilities, subparagraphs (2) and (3) provide that: "[u]pon request by an agency, shall provide and make public advisory guidelines, opinions, or other information concerning that agency's functions and responsibilities;" (Section 92F-42(2), HRS) and "[u]pon request by
any person, may provide advisory opinions or other information regarding that person's rights and the functions and responsibilities of agencies under this chapter" (Section 92F-42(3), HRS).
The legislature clearly gave OlP discretion over the matters dealt with in the Opinion cited by Defendants and OlP has expertise in said area. deference. Therefore, the Opinion should be accorded
The President's release of his birth certificate does not affect Section
338-18, HRS. release of his birth certificate on April 27, 2011 Plaintiff ignore's the fact that Section
Plaintiff argues that the President's
means that Section 338-18, HRS is no longer applicable.
338-18, HRS is meant to protect "the integrity of vital statistics records" and for that very reason access is limited. The President's release of his birth certificate does not change the fact that the Department of Health must comply with Section 338-18, HRS. B. Plaintiffs claim that release of the President's birth certificate is in the public interest of all Hawaiians is unsupported. Plaintiff claims that the Court should "weigh heavily the public interest that all birth
Hawaiians have in establishing the authenticity of the PDF image" of the President's certificate released by him on April 27, 2011.
She also argues that the Hawaii courts have a strongly when assessing whether to make She then proceeds
history of weighing public policy considerations
otherwise confidential records or procedures available for public knowledge. to cite to four cases that she claims support this position. Plaintiff in her memorandum
Not one of the four cases cited by The cases do not hold that the
at pp. 5-6 supports her position.
Hawaii courts consider the public interest when deciding whether to make confidential records or procedures available for public knowledge, but rather, they discuss the Hawaii courts'
application of the public interest exception to the mootness doctrine. The cases cited by Plaintiff have absolutely no bearing on this case. C. Plaintiff has no power or authority to determine the President's eligibility. Plaintiff makes reference to the serious questions she raises with respect to the
authenticity of the President's
birth certificate and her need to compare the birth certificate
released by the President with the official record. Memorandum at p. 4. However, she fails to cite any power or authority that she has to determine the President's eligibility.' Plaintiff does
make unsubstantiated allegations regarding her need for the records and how their release is for the public good, but these unsubstantiated allegations are similar to allegations that Plaintiff has made repeatedly in courts throughout the country and Plaintiff has repeatedly been denied the relief she desperately seeks. See Barnett v. Obama, 2009 WL 3861788, (C.D. Cal. October 29, 2009), Rhodes v. McDonald, 2010 WL 892848, (11 th Cir. March 15, 2010), and Cook v. Good, 2009 WL 2163535, (M.D. Ga. 2009). On one occasion, the involved Court went so far as to
order that Plaintiff pay $20,000.00 as a sanction for filing frivolous pleadings and violating Rule 11. Rhodes v. McDonald, 670 F.Supp. 2d 1363, 1382. (M.D. Ga. 2009). D. Defendants have not waived their jurisdictional defense. claim that Defendants have waived their jurisdictional defense must fail. In
the case of Romero v. State, 82 Haw. 405, 415, 922 P.2d 1018, 1028 (Ct. App. 1996), the court held that an affirmative defense in the same Rule 12(b) motion should not be fatal to the assertion of a jurisdictional defense. The court further held that HRCP 12 has eliminated the
distinction between special and general appearances and thus a party need not make a special appearance for the purposes of asserting lack of personal jurisdiction. E. Id.
Plaintiff failed to serve Defendants pursuant to the requirements ofHRCP Rule 4(d).
Plaintiff appears to argue that service on Defendants by certified mail is sufficient to satisfy the requirements ofHRCP 4(d)(4) and (5). Plaintiff fails to cite any case law or statute to support her argument and, as pointed out in Defendants' motion to dismiss, HRCP Rule 4(d)(4)
Under the United States Constitution, the power to remove a sitting President resides in Congress. Barnett v. Obama, 2009 WL 3861788. Further, Congress is apparently satisfied that the President is qualified to serve. Congress has not instituted impeachment proceedings and the House of Representatives, in a broad bi-partisan manner, has rejected the suggestion that the President is ineligible for office. See H.R. Res. 593, 111 th Congo (2009). Commemorating by vote 378-0, the 50th anniversary of Hawaii's statehood and stating, "The 44th President of the United States, Barack Obama, was born in Hawaii on August 4, 1961."
and (5) requires that the Defendants, who are sued in their official capacities, and the Office of the Attorney General be personally served with the summons and Complaint. Although Plaintiff is proceeding pro se, Defendants ask that she be made to follow the same rules as any other litigant in this Court. F. Plaintiff's claim is not an agency appeal.
Plaintiff attempts to argue that her complaint should be considered an agency appeal and cites to HRS § 91-14. Plaintiff's reliance on HRS § 91-14 is misplaced because HRS § 91-4
applies to the judicial review of contested cases and the case before the court does not involve a contested case as defined in HRS § 91-1(5). III. CONCLUSION For all the reasons stated in Defendants' motion to dismiss and for the reasons stated herein, Defendants respectfully request that this Honorable Court grant their motion to dismiss Plaintiff's complaint. DATED: Honolulu, Hawaii, October 7,2011.
DAVID M. LOUIE Attorney General State of Hawaii
JILL T. NAGAMINE REBECCA E. QUINN Deputy Attorneys General Attorneys for Defendants
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII' DR. ORLY TAITZ, ESQ., Plaintiff, vs. LORETTA FUDDY IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE DEPARTMENT OF HEALTH, STATE OF HAWAI'I, DR. ALVIN T. ONAKA, IN HIS OFFICIAL CAPACITY AS THE REGISTRAR, DEPARTMENT OF HEALTH, STATE OF HAWAI'I, Defendants. CIVIL NO. 11-1-1731-08 RAN CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing document was served on the following at her last known address via Federal Express and a PDF copy of the filed document was emailed to Plaintiff. Dr. Orly Taitz, Esq. 29839 Santa Margarita, Ste 100 Rancho Santa Margarita, CA 92688 DATED: Honolulu, Hawai'i October 7, 2011.
REBECCA E. QUINN Deputy Attorney General Attorney for Defendants
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