TAITZ v FUDDY (HI CIR CT) - 6 - DEFTS' MEMORANDUM IN REPLY TO PLTF'S OPPOSITION TO MTN TO DISMISS PETITION FOR WRIT OF MANDAMUS

8/3/2019 TAITZ v FUDDY (HI CIR CT) - 6 - DEFTS' MEMORANDUM IN REPLY TO PLTF'S OPPOSITION TO MTN TO DISMISS PETITI

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DAVIDM. LOUIE 2162Attorney General,State ofHawai'iHEIDI M. RIAN 3473JILL T. NAGAMINE 3513REBECCA E. QUINN 8663Deputy Attorneys General465 South King Street, Room 200Honolulu, Hawaii 96813Telephone: (808) 587-3050Facsimile: (808) 587-3077Email: [email protected] for Loretta FuddyDirector of Health, State of Hawaii andDr. Alvin T. Onaka, State Registrar of theDepartment of Health, State of Hawaii

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A . P , ,'\ R P LE------l _ E H K

IN THE CIRCUIT COURT OF THE FIRST CIRCUITSTATE OF HAWAII

DR. ORLY TAITZ, ESQ.,Plaintiff,

vs.

LORETTA FUDDY IN HER OFFICIALCAPACITY AS DIRECTOR OF THEDEPARTMENT OF HEALTH, STATE OFHAW AIl, DR. ALVIN T. ONAKA, IN HISOFFICIAL CAPACITY AS THE REGISTRAR,DEPARTMENT OF HEALTH, STATE OFHAWAII,Defendants.

CIVIL NO. 11-1-1731-08 RANDEFENDANTS' MEMORANDUM IN REPLYTO PLAINTIFF'S OPPOSITION TO MOTIONTO DISMISS PETITION FOR WRIT OFMANDAMUS; CERTIFICATE OF SERVICEHEARINGDATE:TIME:JUDGE:

October 12, 20118:30Hon. Rhonda A. Nishimura

DEFENDANTS' MEMORANDUM IN REPLY TOPLAINTIFF'S OPPOSITION TO MOTION TO DISMISSPETITION FOR WRIT OF MANDAMUS

Taitzmemo.doc
mailto:[email protected]:[email protected]


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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, DeputyAttorneys General, submit this memorandum in reply to Plaintiffs opposition to the Defendants'motion to dismiss.I. DISCUSSION

Defendants filed their motion to dismiss asserting that Plaintiffs Petition for a Writ ofMandamus Request for Inspection of Records under United (Sic) Information Practices ActStatute 92F, State of Hawaii, filed on August 10,2011 ("complaint") should be dismissed forlack of jurisdiction (subject matter and personal), for insufficiency of process, and for Plaintiffsfailure 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.' Plaintiffsmemorandum does not provide any legal basis to allow this Honorable Court to denyDefendants' 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 StatesDistrict Court, District of Columbia, titled Orly Taitz v. Michael Astrue, Commissioner of theSocial Security Administration, Case No. 11-cv-00402 RCL wherein she appeared to be allegingthat the President's social security number is invalid. Chief Judge Royce C. Lamberth (JudgeLamberth) granted summary judgment in favor of the government on August 30, 2011 andPlaintiff subsequently filed a motion for reconsideration that is still pending.

1Plaintiff's memorandum was not received by Defendants until October 5, 2011.

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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 existin 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 Section92F-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 thatagencies 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 circumstancesaffecting 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 interpretedindependently of the rest of chapter 92F. Section 92F-13 clearly limits any interpretation of thescope 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) Governmentrecords which, pursuant to state or federal law including an order of any state or federalcourt, 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), whichbegins: "[ajny provision to the contrary notwithstanding, each agency shall also disclose" andsection 92F-13, which begins: n[t]his part shall not require disclosure ... ", there is noambiguity. Principles of statutory construction require that all provisions of the statute (VIPA)

2 Plaintiffs complaint makes no reference to this provision being applicable to her case.

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be read in the context of other provisions of the statute. When sections 92F-l1, 92F-12, and92F-13 are read together there is no ambiguity, because in their entirety they provide the rule thatgovernment records are generally open and the exceptions to that rule, including exceptionsprovided by law (such as section 338-18, HRS).

InKam v. Noh, 70 Haw. 321, 770 P.2d 414 (1989), the Hawaii Supreme Court wastasked with sorting out alleged ambiguities in land use restrictions and height restrictions in thelaw that gave rise to litigation between two property owners. Inparsing out the use restrictions,which had expired, from the height restrictions, which had not, the Hawaii Supreme Court drewupon 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 isclear 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 passedat 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 beread in context of other provisions of that statute and in light of the general legislativescheme. Consequently, each part or section should be construed in connection withevery 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 otherprovisions, there is no ambiguity, and the result is that the exceptions to disclosure provided byboth 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 foundelsewhere in state law (e.g. section 338-18, HRS).

Even ifthis court is of the opinion that government records shall be disclosed pursuant to

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a showing of compelling circumstances affecting the health or safety of any individual, Plaintiffhas shown no compelling circumstances affecting her health or safety that justify disclosure ofthe President's birth certificate nor has she claimed to have suffered any actual or threatenedinjury.

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 certificateis a matter of "obvious national importance". She does not provide references to substantiate herconcerns nor does she explain how her health or safety is affected. In Justice v. Fuddy, 125Haw. 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 byDefendants and found at OIP Op. No 90-23, 1990 WL 482371 (the Opinion) is not binding onthis court. The Opinion interpreted the restricted access provisions of section 338-18, HRS, andits conclusions substantiate that the list in section 338-18(b) is an exclusive list. Plaintiff fails tonote that agency determinations, such as OIP opinions, are accorded deference by the courts ifthe determination involves a particular matter that the legislature has given the agency discretionover. 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 in1988, (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 concerningthat agency's functions and responsibilities;" (Section 92F-42(2), HRS) and "[u]pon request byany person, may provide advisory opinions or other information regarding that person's rightsand the functions and responsibilities of agencies under this chapter" (Section 92F-42(3), HRS).

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The legislature clearly gave OlP discretion over the matters dealt with in the Opinion cited byDefendants and OlP has expertise in said area. Therefore, the Opinion should be accordeddeference.

b. The President's release of his birth certificate does not affect Section338-18, HRS.Plaintiff argues that the President's release of his birth certificate on April 27, 2011

means that Section 338-18, HRS is no longer applicable. Plaintiff ignore's the fact that Section338-18, HRS is meant to protect "the integrity of vital statistics records" and for that very reasonaccess 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 interestof all Hawaiians is unsupported.Plaintiff claims that the Court should "weigh heavily the public interest that all

Hawaiians have in establishing the authenticity of the PDF image" of the President's birthcertificate released by him on April 27, 2011. She also argues that the Hawaii courts have ahistory of weighing public policy considerations strongly when assessing whether to makeotherwise confidential records or procedures available for public knowledge. She then proceedsto cite to four cases that she claims support this position. Not one of the four cases cited byPlaintiff in her memorandum at pp. 5-6 supports her position. The cases do not hold that theHawaii courts consider the public interest when deciding whether to make confidential records orprocedures 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 Plaintiffhave 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

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released by the President with the official record. Memorandum at p. 4. However, she fails tocite any power or authority that she has to determine the President's eligibility.' Plaintiff doesmake unsubstantiated allegations regarding her need for the records and how their release is forthe public good, but these unsubstantiated allegations are similar to allegations that Plaintiff hasmade repeatedly in courts throughout the country and Plaintiff has repeatedly been denied therelief 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 toorder that Plaintiff pay $20,000.00 as a sanction for filing frivolous pleadings and violating Rule11. Rhodes v. McDonald, 670 F.Supp. 2d 1363, 1382. (M.D. Ga. 2009).

D. Defendants have not waived their jurisdictional defense.Plaintiffs 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 courtheld that an affirmative defense in the same Rule 12(b) motion should not be fatal to theassertion of a jurisdictional defense. The court further held that HRCP 12 has eliminated thedistinction between special and general appearances and thus a party need not make a specialappearance for the purposes of asserting lack of personal jurisdiction. Id.

E. Plaintiff failed to serve Defendants pursuant to the requirements ofHRCP Rule4(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 tosupport her argument and, as pointed out in Defendants' motion to dismiss, HRCP Rule 4(d)(4)

3Under 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-partisanmanner, 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 Presidentof the United States, Barack Obama, was born in Hawaii on August 4 , 1961."

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and (5) requires that the Defendants, who are sued in their official capacities, and the Office ofthe Attorney General be personally served with the summons and Complaint. Although Plaintiffis proceeding pro se, Defendants ask that she be made to follow the same rules as any otherlitigant 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 91-4applies to the judicial review of contested cases and the case before the court does not involve acontested case as defined in HRS 91-1(5).III. CONCLUSION

For all the reasons stated in Defendants' motion to dismiss and for the reasons statedherein, Defendants respectfully request that this Honorable Court grant their motion to dismissPlaintiff's complaint.

DATED: Honolulu, Hawaii, October 7,2011.

DAVID M. LOUIEAttorney GeneralState of Hawaii~~2.tL~HE~RIANJILL T. NAGAMINEREBECCA E. QUINNDeputy Attorneys GeneralAttorneys for Defendants

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IN THE CIRCUIT COURT OF THE FIRST CIRCUITSTATE OF HAWAII'

Plaintiff, CERTIFICATE OF SERVICEDR. ORLY TAITZ, ESQ., CIVIL NO. 11-1-1731-08 RAN

vs.LORETTA FUDDY IN HER OFFICIALCAPACITY AS DIRECTOR OF THEDEPARTMENT OF HEALTH, STATE OFHAWAI'I, DR. ALVIN T. ONAKA, IN HISOFFICIAL CAPACITY AS THE REGISTRAR,DEPARTMENT OF HEALTH, STATE OFHAWAI'I,

Defendants.

CERTIFICATE OF SERVICEThe 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 fileddocument was emailed to Plaintiff.

Dr. Orly Taitz, Esq.29839 Santa Margarita, Ste 100Rancho Santa Margarita, CA 92688

DATED: Honolulu, Hawai'i October 7, 2011.

~2~REBECCA E. QUINNDeputy Attorney GeneralAttorney for Defendants

Documents

TAITZ v FUDDY (HI CIR CT) - 6 - DEFTS' MEMORANDUM IN REPLY TO PLTF'S OPPOSITION TO MTN TO DISMISS PETITION FOR WRIT OF MANDAMUS