Taitz v Fuddy HI1CC Taitz Opposition to MTD

8/3/2019 Taitz v Fuddy HI1CC Taitz Opposition to MTD

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Dr. Orly Taitz, Esq.

In Propria Persona

29839 Santa Margarita Pkwy., Ste 100

Rancho Santa Margarita, CA 92688

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7 U I ! O C T - 4 A H 1 0 : 41

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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

DR. ORL Y TAITZ, ESQ.,

Plaintiff,

v.

LORETTA FUDDY INHER OFFICIAL

CAPACITY AS DIRECTOR OF THE

DEPARTMENT OF HEALTH, STATE OF

HAWAIl, DR ALVIN T. ONAKA, IN HIS

OFFICIAL CAPACITY AS THE REGISTRAR,

DEPARTMENT OF HEALTH, STATE OFHAWAII,

Defendants.

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OPPOSITION TO MOTION TO

DISMISS PETITION FOR

WRIT OF MANDAMUS

Hearing:

Date: October 12,2011Time: 8:30 am.

Judge: Hon. Rhonda A.

Nishimura



Dr. Orly Taitz, Esq. ("Dr. Taitz") hereby opposes Defendants' Motion to Dismiss

her Petition for a Writ of Mandamus as follows:

1 . 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 himself-in 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.

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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 Obama's 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

Hawaii's 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 Hawai'i 104, 253 P.3d 665 (2011), which dealt with

this sort of request before Obama's 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.

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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, 201 I-the

suspicious image questioned by Dr.Taitz and others.

While the Court in Justice denied the plaintiff access to Obama's "birth

certificate" allegedly maintained in Hawaii's official records, Obama's release of the

purported PDF image of a birth certificate alters the calculus set forth inJustice, 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 curiosity's 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 Hawai'i 104, 110,253 P.3d 665, 670.

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I. }

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 fmding 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 Hawai'i 104, 113,253 P.3d 665,673. Conversely

Dr. Taitz's 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. Taitz's 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. Taitz's claim under the UIPA: for

"[gjovemment records pursuant to a showing of compelling circumstances affecting the

health or safety of any individual[.]" HRS § 92F-12(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,

"[wjhen 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

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future guidance of public officers, and (3) the likelihood of future recurrence of the

question." Hamilton v, Jones, 119 Hawai'i at 6--7, 193 P.3d at 844-45.

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 Hawai'i 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 public's interest for this court to review the family court's ruling that Hawaii's

grandparent visitation statute [was] unconstitutional on its face." Doe at 327, 172 P.3d at

1071.

Additionally, in Kaho'ohanohano v. State, 114 Hawai'i 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 Hawai'i I, 175 P.3d III (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.ld at 9,

175 P.3d at 119.

Dr. Taitz respectfully submits that inthis case the Court should weigh heavily the

public interest that all Hawaiians have inestablishing 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.

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III. DR. TAITZ'S 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 ifit is

improperly styled as a "Petition for Writ of Mandamus. "

While the "writ of mandamus" was nominally abolished in the Circuit Courts

under the Hawai' i 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.

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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, Me Vey, 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 petitioner's claim for relief is in the circuit court" [d.

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." [d. 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 reliefis improperly styled.

(b) Dr. Taitz 'spetition 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. Hawai'i Gov'l. Employees Ass 'n,

107 Hawai'i 178, 184, 111 P.3d 587, 593 (2005). HRS § 91-14 confers jurisdiction on

the circuit court to review "final decision[s] and order[sJ in [ ] contested case]s]." As

previously quoted, HRS § 91-14 provides in relevant part that:

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(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 inthis section shall be deemed to prevent resort

to other means of review, redress, relief, or trial de novo, includingthe right of trial by jury, provided by law. Notwithstanding any other

provision of this chapter to the contrary, for the purposes ofthis

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. Taitz's petition for relief, she requests the Court consider it on the basis of

Department of Health's refusal to allow her access to view the requested document.

IV. DR. TAlTZ'S 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.

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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, Dr.Orly Taitz, Esq.

September 30,2011

Dr. Orly Taitz, Esq.

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CERTIFICATE OF SERVICE

I,Lila Dubert, am over 18 years old, not a party to this action and I attest, that I served

the defendants in this case today, on September 30th, 2011, through their attorney, Jill

Nagamine, assistant Attorney General of the state of Hl by mailing the above oppositionI

t~ ~e mot\f\to dismiss by irtified mail

(Signed \~,

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Documents

Taitz v Fuddy HI1CC Taitz Opposition to MTD