taitz-opp-4-27-12

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DAVID M. LOUIE

Attorney General,

State of Hawai 'i

2162

3473

3513

8663

HEIDI M. RIAN

JILL T. NAGAMINE

REBECCA E. QUINN

Deputy Attorneys General

465 South King Street, Room 200

Honolulu, Hawaii 96813

Telephone: (808) 587-3050

Facsimile: (808) 587-3077

Email: [email protected]

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

HAWAI'I, DR. ALVIN T. ONAKA, IN HIS

OFFICIAL CAPACITY AS THE REGISTRAR,


HAWAI'I,

Defendants.

CIVIL NO. 11-1-1731-08 RAN

DEFENDANTS' MEMORANDUM IN

OPPOSITION TO PLAINTIFF'S MOTION

FOR RECONSIDERATION DUE TO NEWINFORMATION; CERTIFICATE OF

SERVICE

NON-HEARING MOTION

JUDGE: Hon. Rhonda A. Nishimura

TRIAL DATE: NONE

DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S

MOTION FOR RECONSIDERATION DUE TO NEW INFORMATION

Loretta Fuddy, Director of Health, State of Hawai'i and Dr. Alvin T. Onaka,

Registrar, Department of Health, State of Hawai 'i ("Defendants") by and through their

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mailto:[email protected]

mailto:[email protected]

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attorneys, David M. Louie, Attorney General, and Heidi M. Rian, Jill T. Nagamine, and

Rebecca E. Quinn, Deputy Attorneys General, submit this memorandum in opposition to

Plaintiff's Motion For Reconsideration Due to New Information.

I. INTRODUCTION

Plaintiff filed her Petition for Writ of Mandamus Request for Inspection of

Records Under United (sic) Information Practices Act Statute 92F, State of Hawaii on

August 10, 2011. She was seeking inspection of President Barack Obama's original birth

certificate based on the Uniform Information Practices Act (UIPA). The Court found no

basis for any of Plaintiffs claims and dismissed her case with prejudice. Subsequent to

the dismissal, Plaintiff continued to file several more motions requesting various forms of

relief, all of which were denied 1. The order of dismissal stands, yet Plaintiff has now

served Defendants' counsel with her Motion for Reconsideration Due to New Information

(unfiled as of the date of this memo).

II. PLAINTIFF'S MOTION

A. Plaintiff is apparently seeking relief from the order dismissing this case. She

brings her motion pursuant to Rule 60, Rules of Civil Procedure, based on "new

information." Because Plaintiff attempts at pages 3 through 5 of her motion to quote

parts of Rule 60(b), Hawaii Rules of Civil Procedure (HRCP), and because she has

I(1) November 10, 20ll--0rder Granting Motion to Dismiss Petition for Writ of

Mandamus Request for Inspection of Records Under United (sic) Information PracticesAct Statute 92F, State of Hawaii filed August 10, 2011.

(2) January 9, 201i-Order Regarding Ex Parte Amended Motion Reciprocal Subpoena

Enforcement.

(3) February 9, 20 12-0rder Denying Plaintiffs Motion Reciprocal Subpoena

Enforcement (sic), filed January 5, 2012.

(4) February 9, 2012-0rder Denying Plaintiffs Amended Emergency Motion for

Rehearing Motion to Stay Final Order Pending Rehearing Motion filed December 6,

2011.

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entitled her motion as "Motion for Reconsideration due to New Information," Defendants

logically conclude that Plaintiff intends to rely on Rule 60(b)(2), HRCP, in support of her

motion. Rule 60(b)(2), HRCP, allows for relief from a judgment or order based on

"newly discovered evidence which by due diligence could not have been discovered in

time to move for a new trial under Rule 59(b)." The "information" referenced by

Plaintiff, in an inartfully collated, defectively stapled, and misordered collection of pages,

includes (1) a transcript of an administrative hearing in the State of Georgia with no

reference to the outcome of the hearing, (2) an incomplete transcript of a press

conference in the State of Arizona, transcribed by someone of unknown qualifications,

and (3) a videotape soliciting campaign contributions to Plaintiffs political campaign in

the State of California. Also enclosed with Plaintiffs mailing, but not referenced in her

motion, are (1) an unfiled (unserved) copy of her "First Amended Complaint Petition for

an Emergency Injunction from General Election, Permanent Injunction, Declaratory

Relief, Treble Damages in RICO" in a Mississippi case, (2) an affidavit of Felicito Papa,

dated April 28, 2011 (which Plaintiff had already attached as an exhibit to her complaint),

(3) an affidavit of Felicito Papa, unsigned and undated, (4) an illegible copy of something

purportedly prepared by a Linda Jordan in August, 2011, (5) an affidavit of Susan

Daniels, dated October 19, 2009, (6) an affidavit of Douglas B. Vogt, dated May 10,

2011, (7) an affidavit of John N. Sampson, dated March 8, 2010, (8) an email message

from Greg Hollister to Orly Taitz, dated February 9, 2011, (9) a Certification Declaration

of Christopher-Earl: Strunk in esse, dated December 11,2011, and (10) six blank pages.

B. Plaintiff apparently also seeks to amend the relief she originally sought in

her dismissed complaint. Plaintiff admits at page 3 of her motion that she no longer

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actually seeks disclosure of the President's long form birth certificate, her stated goal in

her complaint, but instead, now wants access to what she calls "the book of birth record

for 1961 and microfilm of the same. "

C. Plaintiff, in an apparent misunderstanding of "sua sponte," asks the Court

to sua sponte order Deputy Attorney General Nagamine or other specially appointed

attorney from the Department of the Attorney General to criminally investigate and

prosecute all the individuals involved in Plaintiffs imagined forgery scheme. This also is

relief that Plaintiff did not seek in her initial complaint.

III. SUMMARY OF DEFENDANT'S POSITION

All of Plaintiffs requests should be denied. Nothing in Plaintiffs submittals

establishes a basis for the Court to provide relief from the original dismissal nor does it

establish that Plaintiff is entitled to the confidential vital statistics information she seeks

any more than she was entitled to it before. Similarly, nothing in Plaintiffs motion

entitles her to amend her initial dismissed complaint to seek the completely different

relief that she is seeking via this motion. Plaintiff never amended her initial complaint

before it was dismissed, so even if there were merit in her submissions, which there very

clearly is not, she would have no basis upon which to modify the relief she seeks.

Plaintiff obstinately refuses to believe the obvious, i.e., that there is no forgery scheme or

any other scheme to be investigated by anyone. In light of the reliable and readily

available proof of the President's American citizenship, it would be a manifest waste of

time to even consider investigating Plaintiffs allegations of forgery.

IV. ARGUMENT

A. Plaintiffs Motion does not establish a right to relief from dismissal

based on newly discovered evidence.

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Plaintiff has not submitted newly discovered evidence. Most of the documents

Plaintiff submits precede the October 12, 2011. dismissal of this case, including one

which was actually attached to her complaint! Nothing in Plaintiffs motion supports a

finding that there is newly discovered evidence which by due diligence could not have

been discovered in time to move for a new trial under HRCP Rule 59(b).

There is no indication that a transcript of a Georgia administrative proceeding that

lacks a ruling or determination regarding the testimony proffered in that proceeding is

relevant in any way to this case. Plaintiff fails to provide an offer of proof to establish

any relevance.

The proffered transcript of a press conference in Arizona is obviously incomplete,

as it ends mid-sentence, and Plaintiff once again fails to provide an offer of proof as to its

relevance, evidentiary value, or foundation.

Plaintiffs proffered video recording appears to be a self-serving, campaign

fundraising tool, bears no relevance to this case, and also lacks foundation.

All of the other documents precede the dismissal in this case, so Plaintiff, by due

diligence, could have discovered them prior to the dismissal of this case. Plaintiff does

not even describe her efforts to discover her proffered evidence before the dismissal of

her case or explain the reason for her not having them earlier, if she indeed did not. Even

if she could not have discovered them earlier, like her other submissions, these

documents bear no relevance to the issues that were initially presented by this case, i.e.

whether or not Plaintiff is entitled to the President's vital record information.

InOmerod v. Heirs of Kaheananui, 116 Haw. 239, 172 P.3d 983 (2007), a quiet

title action where the Third Circuit Court's denial of Plaintiffs motion for relief from

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judgment was affirmed, the Hawaii Supreme Court set forth the conditions for granting a

new trial pursuant to Rule 60(b)(2).

When a motion for relief is brought under HRCP Rule 60(b)(2), a new

trial can be granted provided the evidence meets the following

requirements: (1) it must be previously undiscovered even though due

diligence was exercised; (2) it must be admissible and credible; and (3) it

must be of such material and controlling nature as will probably change

the outcome and not merely cumulative or ending only to impeach or

contradict a witness.

116 Haw. 239, 277, 172 P.3d 983, 1021.

In this case, Plaintiff cannot meet any of the required criteria, and thus her motion

should be denied.

B. Plaintiff has provided no new reason or information to establish a

right to access to a confidential vital record.

As previously stated in this matter and expressed ad nauseam to Plaintiff in this

and other forums, Hawaii State law prohibits the disclosure of the records Plaintiff seeks

to anyone other than those who are legally entitled to disclosure. Vital statistics records,

such as the President's birth certificate, or records of all births in a particular year as

Plaintiff now seeks, are protected by strict confidentiality requirements under state law.

Section 338-18, Hawaii Revised Statutes ("HRS"), prohibits disclosure of the records

sought by Plaintiff to anyone without a direct and tangible interest. For brevity's sake,

rather than restate Defendant's argument here, reference is made to pages 6-10 of

Defendant's Motion to Dismiss' filed herein on September 2,2011.

The list of persons with a direct and tangible interest in vital statistics records is

limited to the thirteen enumerated categories set forth inHRS §338-18(b). To this day,

2 The complete title of the motion was: Motion to Dismiss Petition for a Writ of

Mandamus Request for Inspection of Records under United (sic) Information Practices

Act Statute 92F, State of Hawaii, filed August 10,2011.

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Plaintiff has never alleged she has a direct and tangible interest in the vital records of

President Obama, nor does she have one.

C. There is no basis to grant Plaintiffs request for relief that is

different from that which she sought in her complaint.

Plaintiffs complaint sought a writ of mandamus advising the Defendants that the

President has waived his right to privacy, that section 338-18, HRS, does not apply to the

President's birth certificate, that the Defendants are obligated to allow Plaintiff to inspect

the original long form birth certificate of the President, and that Defendants are liable to

Plaintiff for her costs and fees. Now Plaintiff specifically states that she is not seeking

disclosure of a "long form birth certificate for Barack Obama," but rather access to the

"book of birth record for 1961 and microfilm of the same."

Even if there was a basis for relief based on Plaintiffs submissions and Rule

60(b)(2), which there is not, Plaintiff is not entitled to relief that she never sought in her

complaint.

In Bank of Hawaii v. Horwoth, 71 Haw. 204, 787 P.2d 674 (1990), a mortgage

foreclosure case, the Hawaii Supreme Court cited the general principle of fundamental

unfairness in allowing greater or different relief from that prayed for.

"[O]nce the defending party receives the original pleading he should be

able to decide on the basis of the relief requested whether he wants to

expend the time, effort, and money necessary to defend the action." 10 C.

Wright, A. Miller &M. Kane, Federal Practice and Procedure § 2663, at

139 (1983) (footnote omitted). And "it would be fundamentally unfair to

give greater or different relief from that prayed for since a defaultingdefendant may have relied on the relief requested in the complaint in

deciding not to appear and defend the action." 10 C. Wright, A. Miller &

M. Kane, supra, § 2662, at 131 (footnote omitted).

71 Haw. 204,214, 787 P.2d 674, 680.

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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

Plaintiff, CERTIFICATE OF SERVICE

DR. ORLYTAITZ, ESQ., CIVIL NO. 11-1-1731-08 RAN

vs.

LORETTA FUDDY IN HER OFFICIAL

CAPACITY AS DIRECTOR OF THE


HAWAI'I, DR. ALVIN T. ONAKA, IN HIS

OFFICIAL CAPACITY AS THE REGISTRAR,


HAWAI'I,

Defendants.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing document was

served on the following party by U.S. mail, postage prepaid, on April 27, 2012.

Dr. Orly Taitz, Esq.

29839 Santa Margarita, Suite 100

Rancho Santa Margarita, CA 92688

DATED: Honolulu, Hawaii, April 27, 2012.

f f i£1_~nTONAGAMINE

Deputy Attorney General

Attorney for Defendants

459015_l.DOC

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