TAITZ v FUDDY, et al. (HI Cir. Ct.) - MOTION TO DISMISS - 64115865

8/4/2019 TAITZ v FUDDY, et al. (HI Cir. Ct.) - MOTION TO DISMISS - 64115865

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DA VlD M . LO"IF . 2 62A tto rn ey Ge ne ra l,State of Hawai iHEIDI M. R J r 3473.JILLT. NAGAMINE3513R E n e e A E . . QUI 8663Depu ty A tt orn ey s General465 South King treet, Room 200Honolulu, I lawai . 96813Telephone: (808) 587-3050F~e:(808)587-3077Email: Jill . [email protected] .govAttorneys for Loretta FuddyDirector of Health State of awaii andDr. Yin T. Onaka, State Registrar of theDepartment of Health, State of Hawaii

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IN TIffi CIRCUIT COURT OF THE FIRST CIRCUITATE OF HAW AII

DR . ORL Y T AITZ ESQ.,Plaintiff,

vs..LORETTA' 'DDY HER OffiCIALAPAClTY AS DIRECTOR OF TIffiDEPARTM ENT OF HEALTIL ST~TE OFHAW A IL DR.. AL T. 0 AKA, I H1SO FFrCIA L CA PA CITY A S THE REGIS~DEPARTM ENT OF HEALTH, STATE OFHAW~

Defendants.

CIV I NO . 1-1-173"()8 RAjMOT 0 TO O lSM I S PETITIO FOR AWRIT OF M A AM US REQUEST FORINSPECTIO N O F R ECO RD S UND ER

(SIC) O RM A TIO N PR AC TIC ESCT STA TE 92F , STATE O F H A \V A llILED A ST 10, 20 I M :EMORAND "PPORT OF M OTION DECLARA IONOF JILL T. NAGAM INE; EXfUBITS A -C;ECLARATlO OPK rn YAMAMOTO ;. OT C OF M OTIO ; CERTIFICATE OFSERVI Eo c r J 2 2 O t 1 'EARINGDATE:

.IME:E : 8:30A-M.Bon. Rhonda 'A . ishimura

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MOTION TO DISMISS PETITIO FO A 7JUT OF MA. DAJ S REQUEST FORINSPECfIO Y OF RECORDS UNDER . ITD (SIC) INFORMATIO PRACflCESA STATUTE 92FSTATE OF SAW , FILED AUGliST 10, 20J 1Loretta Fuddy, Diroc or of Health, tate ofHawai'i and Or. Alvin T. Onaka, Registrar?

Department of eahh, State of Ha ai i"'Defendants, by and through their attorneys Da idLouie, Attorney General, and e O d i M. Rian, J i T. agamine, and Rebecca E. Quinn. DeputyAttomeys Genera l , hereby move this Court fOTan order dismissing P aintiff's Petition for a Writof Mandamus Request for Inspectio of Records under United (Sic) Information Practices ActStatute 92F State of Hawaii, filed on AUgust 10 20 (Ucomplaint'/. Defendants requestdismissal oft> aintiffs com p runt for lack of jurisdiction (subjcc matter an d personal), forinsufficiency of process, and for P aintiff's failure 0state a claim. upon which relief can begranted.

'This motion isbrought pursuant to R c 7 of e Rilles of the Circuit Courts of tbe Stateof Hawaii, and Rules 12 (b)( ), (2), (5) and (6) of the Hawaii Rules of ivil Procedure and it isased on the memorandum insupport of motion and the records and files herein.

Dated: Hono ulu, Hawaii, September 2 2011.DAVID . LOUIEAttorney GeneralState of Hawaii

Deputy Attorney era! I

A orneys for Dcfcndan:

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Defendams request that this Ionorab e ourt dismiss Plaintiff's complaint. This requestis made on the basis that th e Court acks personal jurisdiction OVe( De fe nd an ts b ec au se Plaintifffailed to effect s er vi ce pu rs uan t to Iawaii Ru e of ivil Procedure (lR P) 4 he Court lackssu ~ect matter ju ris dic tio n o ve r this case because it involves a request fo r a writ 0 mandamus,and Plaintiff's comp aint fails to state a c aim upon which relief can be granted because HawaiiState aw prohibits the rc case of the information Plaintiff seeks.II. BACKGROUND

On or about July 5, 20 , Plaintiff prepared a subpoena that was issued out of the United

States District Court for the District of Hawai io a non-party! the Director to produce thePresident's riginal irth certificate on AUgust 8, 201 for the purposes of inspecting, copying,testing, Or sampling the document. Plainti sent the su poena by certified mail to the Attorney(Jenera! of Iawaii on July 11, 2011, but did not send it to the Director, On July 27 20 1,Plainti sent the Direct iT a etter indicating that the subpoena had been sent to the AttorneyGeneral of Hawaii along with a 09PYof the subpoena.

Plaintiff appeared at the offices of the Department of ealth on August 8 2011 anddemanded immediate access to the Presi eat's irth certificate, Keith Yamamoto Declarari n('Yamamoto Decl,") at I3. She was met by a designated representative of the Director ofHealth who was there C o inform P .ain tifftbat she w ould no be g iv en a cc es s 0t he Pres iden t' sorigina birth certificate. Yamamoto Dec at 3. P ainriff'was a ls o a sk ed ifthere was anythingshe wanted to SCNe on the Director or the Diroc or s des' gnee, and P aintiff said she d..d 00insisting that she had already served the subpoena. Yamamoto Decl. at 5. Despite Plaintiff's

I~ bpoeea p~ by Plaintiff is related to a case th e w as pc:rut ing in the United States District Court, Districtof olumbia. . ed Orl Taitt v. Micba 1. 'tv Admini~ ~ O.)).c v-0 04 02 RCL whet'cin the PI&ntiff a p p e : a t e d . t be aUeg).ng d'I3I the Prcsldcnt 's social security number is in va lid .Chie f J udge Royce C. Lamberth granted swnrnazy j udgmc: t inthat case on At100us t30, 2Q) I.

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failure to serve the subpoena inaccordance with Fed.R.Civ.P. 45(bXt), the Director, through hercounsel, delivered written objections to P ainti pursuant 0and within the time mandates ofFcd.R.Civ.P.45. In that letter, the Direc or's counsel addressed the manner of service and themerits of the subpoena. A true and correct copy of the ctter written by the Director s counsel isa tachcd as Exhibit uA " to the Dec aration of Jill T. Nagamine ("Nagaminc Decl. ') filed herein.

n ereafter, Plain iff filed a orion to mpel comp iaoce with th e subpoena! in th eUnited States District Court for the District of Hawai iand thc present action.III. STAJ'IDARDOF REVIEW

HR , Rule 12(b) provides that inlieu of an answer certain defenses may at the optiono the p eader be made by motion. ncluded inthe defenses that may be raised insuch amotionarc the following defenses presently raised by Defendants;

(1) lack of ju risd ic tio n o ve r th e subject matte r, (2 ) la ck of jurisdiction over th eperson, (5) insufficiency of service of t recess, and (6) failure to state a claimupon which re lief c an be granted, ...

A review of a motion to dismiss for lack of subject matter jurisdiction is based on thecontents of the com laint, the al egations of which are accepted as true and construed inth lightmost favorab e to the plaintiff. o rr is v . Haw .a iia n ..A it m . e s . 74 Haw. 235, 240, 842 P.2d 634637 ( 992), aff 512 t .s . 246 (1994) citing Love v. U .. ,872 F.2d 1488, 1491 (9ft it. 989).lowe er .. he n considering a motion to dismiss pursuant to Rule 12(bX ) the trial court isnotrestricted to the ace oftbe pleadings, but may review any e idence , ch as affida it s andtest"mony, to resol e factual disputes concerning the existence of jurisdiction. Nom.s at 240 842P.2d at 637 citing McCarthv v. U.S ...850 F.2d 558,560 ( 9 C h it. 988), cert. denied, 489 U_$.1be bea.tmt co laintiW sMC>tionto Compcl is set for bearing on November 2). 20) 1 befOre the Magistr.ue ludg.eRichard L. Puglisi, United States Discri~ Com for the lMtriet of J fa ..

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1052, (1989) and 5A Charles A an Wright & Arthur R. ier, Federal Practice and.Proce4\.qe 1350 (1990). enever it appears by suggestion 'O f the parties or otherwise that the courtlacks jurisdiction 'O f the subject matter, the court shal dismiss the action.' H P 12(hX3).

\Vhen considering a motion 0 dismiss for fai ure to state a claim, it is well sett led that:A comp a im should not be dismissed for failure to state a claim unless it appears beyondreasonable d ub that the p la in ti ff c an rove no set 'O f facts in sup rt 'O f his or her c aimilia would entitle him or her to relief. Ravelo v. County ofH~ i.66 Haw. 94, 98658 P.2d 883, 886 ( 983) ... [citations omitted] We must therefore view a p aintiff'seomp aint ina light most fa orab e to him t b e t in order to etermi ne bether th eallegations contained therein could warrant relief under any alternative theory. Ravelo. 66Haw. at 99,658 P_2d ax 886.

Keauhou Master Homcowncrs,As.w.:;atiQIlJn.C. v. COWl Y.2f.H~wsY.i, 04 Hawai'i 214, 218 87P ..,d 883, 887 (2004). Thus, when considering a motion to dismiss a comp aint for failure tostate a claim for relief, the Court s eonsidetati n is strictly imited to the al egations of thecomplaint, which must be accepted as true. Id. Inaddition, th e Court must construe thcallegatio of the mplaint in the light most favorable to the Plaintiff. Wright v. nome DepotU.S.A., Inc., 11Hawai'i 401,406 42 P.3~ 265, 270 (2006).IV. ARGUM!. IT

A.Plaintiff's attempt at service ofproccss on Defendants is insufficient under HRCP 4. It is

well settled that the requirements of HR P 4(d) most be c mplied with before a court haspersona l jurisdiction over a defendant. Citicorp Mortgage, Inc. v. Bartolomh 94 Haw. 422, 430,16 P 3d ~ 27 835 (Haw. A p p. 2000) (citations omitted). T he sufficiency of process is dctexmined

follows:

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r n the tate by delivering a copy of the summons and of the complaint to theAttorney General of the Stat or to the assistant Attorney General or to any deputyA tto rn ey en eral w ho h as b ee n ap po in ted y th e A t tomey General.

In order 0 se rv e an o ffic er or an ageoc of the S ta te , HRCP 4 (dX5) requires that serviceshall be made a s fo llow s:

(Jpoo an officer or agency of the tate by serving the State and by de ivering acopy of the summons an 0 tbe comp aint 0such officer or agency. Ifm e agencyis a corporation, the copies shall be delivered as provided inparagraph (3) of thissubdivision of th i s rule.Thus, to effect service upon th e State; an officer, or agency of the State, the Attorney

General and the officer or agency m\1S be ptlSOnal y served. A tached as Exhibit B toKagamine Dec . is a true and correct copy of the Proof of Service fi e e l by P aintiff on AUgust 23~201 inthis C9Se. It contains n proof of se .ce n the Attorney General as it merely states thata courtesy notice was provided to De my Attorney General, Jill Nagamiac. Furthermore, itreflects that Plain 'ffmailed the complaint to the Defendants by certified mai , instead of ha 'ngit personally served as required by HRCP 4(dXs). Thus, this court lacks personal jurisdictiono er the Defendants due to the insufficiency of service of process.

B. TheCobis COlIn lacks subject matter jurisdiction over Plaintiff s request for 3 writ of

mandamus. According to P 81. , t e writ of m andam us is abolished in th e c ir cui t court s,except when direc cd to a court of inferior jurisdiction. Additionally subject matter jurisdictionto hear mandamus actions that are not ab c 0 be heard before the circuit courts lies with theSup erne ourt of Ha aii, Hawai'I Rule of A peUate Procedure 21 addresses mandamus actionsand states, in pertinent part, as follows:

(b) Wri So fMandatnu s D ir ec te d to a Public Officer: An application for awrit of mandamus direc ed t a public officer shall made by fi ing apetition with the appella e clerk with oof f se rv ic e on the officer and

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the attorney general or the ehie ega! officer of the county, as applicab e.'the petition shall conform to the requirements of subsection (a) o f th isrule. pon receipt of the prescribed filing foe, the appc late e eric shaldocket th e petition and submit it to the sup reme court for a determinationas to whether e petition wi 1be entertained. If the court elects 0entertain th e petition, iwill be handled in the same manner as a petitionunder subsection (a) of this rule.

P aintiif c early seeks awrit of mandamus in this ease as is evident from both theti e of her complaint and her p ra ye r fo r relief. However, based on llRCP 8 .1 andHRAP 21 ju ris dic tio n o f the writ of m and am us sough by P aintiff d oes not lie 'th theCircuit Courts but with the Supreme ourt of Ha aii, Therefore this court lacks subjectmatter jurisdi ion inthis matter.

C. Hawaii State Law Prohibits ~osurc of Rccords sought bv P aintif,As previously stated, Plaintiff requests awrit of mandamus directing the Defendants 0

allow P aintiff 0inspect the President's birth certificate. However, Hawaii tate law prohibitsthe disclosure of the records Plain' fIeeks, Vital statistics records, such as the President's birthcertificate are protected by strict confidential ity requirements under state law. Section 338-18Hawaii Revised Statutes (c .


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(b) 'he department shall t permit inspection of pub ic heaJth statistics records, or.ssue a certified copy 0 any such record or part thereof, un ess it issatisfied lM thea pp ic an t ha s a d ir ec t and tangi le interest in the rec ord . The fo lov. . t jngpersons shall beconsidered to have a direct and t a n g ; e interest in a pub ic health statistics record:

( ) The registrant;(2) The spouse of the registrant;(3) A paren of the registrant;(4) A descendant of the registrant;(5) A pers having a common ances or with the registran .(6) A legs guardian of the re gis tran .(7) A person or agency acting Onbehalf of registrant;(8) A personal representative of the registrant s estate;(9) A person whose right 0 inspec or obtain a certified copy of the teCOX' isestablished by an order of a c ourt of competent jurisdiction; .(10) Adoptive paX"enJ who have fi ed ape' .on for ado ti n and who need todetermine death of one or m re of th e prospecti e adopted child's natural oregal parents;(11) A person ~ ho needs to determine the marital status of a ormer spouse inorder 0 determine payment of alirn ny;(12) A person who needs to determine the death of a nome ated co-owner ofproperty purchased under a joi nt enancy agreement; and( 3) A person who needs a death certificate for e de crmination of paymentsunder a credit insurance policy.

URS 338-18(b) (emphasis added).The is t of persons with a direct and tangible interest in ital statistics records is limited to

the thirteen enumerated categories set forth inHRS 3" 8-18(b). Plaintiff is not .n any of thesecategories.

The thirteen categories in 'on 338-18(b) of persons with a direct and tangib e in crestin the records are exclusive and Plaintiff does not allege that she isa person inany of thosecategories, nor is she a person inany of those categories. She alleges nothi ng that indicates shemight have such a right.

An Offiee of nf arion Practices ('0 ) Opinion from 996, found at OIP Op, No 90-23, 990 WL 482371 and attached. as :xhibi "C"" to agamine Decl, ("the Opinion"), interpretedthe restricted access pro, .sio f section j38 18, HRS, ae its conclusions substantiate lhat be

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list in section 338-18(b) is an exclusive ist. The O pin io n w as in respo nse to a p erson 's req ue stfor o pe n a c ce ss to vital rec ord s fo r a gen ealog y p rojec t. Its c on e u sio n was that o nly th os erecords over 75 years old were considered 'open" records pursuant to the IPA. Other vitalr eco rd s , p u rsuant 0 sec tion 338-18, HRS, w ere "c losed or restric ted by aw ," A lthough helanguage "direct and tangible" w as not inthe 1977 version of th e statute that was be ing d is cus sedin the opini e, it was mentioned as part of the Mode V S tatistic s A c4 w hic h chapter 3..)8,HRS , c lo se ly r es emb le s.

Thus> the 1977 M ode Regulations, ike the 1977 am end ments to secti n 338-18 (b )Hawaii Revised Stamtes, eaumerate a is t persons who have a special status inrelationo a registran O r by d efin ition , have a "d irec t and tangib e in terest" in th e registrant'svital statis ic r eco rd .

o Op. 090-23, 1990 NL48237 at p. 4.Part of th e Opin io n's c o lusion was t h . 3 t for those records ess than 7 5 y ea rs 0d, a

person may in sp ec t them "only if the DOH is satisfied that the person stands inthe spousal,fami Ial, r other re arion set forth. insection" 8-18(C)~ H aw aii R ev ised S tatutes," T hec gislativc his ory w as examined inth e Op in io n;

irst, the egislative bistory of the 977 amendmentsestab ish (sic] that they wereint ed to c la rify a nd codify the OH's past prac tic e and p olic y of restric ting ac cess 0v it al r eco rd s to the person nam ed in th e vital r ec or d, th eir family members , or authorizeda ge nts o r p ers on s acting on their behalf. In a ettcr to th e c hairm an of the H ouse H ealth.ommitree dated February 16, 977, the th en D irec to r of Health, in support (the 1mamendments , Stated:

There is f re quen tl y con fu si on and disagreement as to wha t cons ti tu te s a directand tangible imerest" ben eciding whether an in iidnal bas the right t recei ea copy of a vital record, Present regulations and policy restrict issuance ofcertified copies of vital records to p erso ns n am ed on th e re co rd , family m emb ers ,authorized agents or persons acting' n their behalf.

A Bill for an Act Relating to Vital Statistics Rcgistra 014 Hearing on H.B, N o. 20~before the House Health Committee, 9th Leg. Reg. Sess. ( 971) (written testimony ofGeorge A.I.. Yuen, Director of Health).

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OIP Oo. ro 90-23 1990 WL 82371 at p. 4-5,In 'ts conclusion, the Opinion sta ed:We con e that a person seeking 0 inspect a 'tal record rc ating to an event thatoccurred ess than 7S years ago may inspect a vital record without demonstrating that theinformation is necessary for the d e te rm i na tio n o f p er so na l or property rights, only if theDOH is satisfied that the person stands inthe spousal, familial, or 0 er re ation se forthinsection 338- 8(b) Hawaii Revised Statutes. onverse y." a person socking to inspector copy a vital record does not stand i t ) . the spousa l familial or other relation set orth insection 3.> 8-18( ), the persoe may inspect th e record only if the Registrar is satisfi thatth e information is "necessary for th e determination of personal or property rights,"Whether a person seeking to inspect a vital record stands in th e relation to the registrantrequired y section 8- 8(b) H wall Revised Statutes, is eft to the determination of theDOH. Similarly wh eth er a cc ess to vital records is necessary to the etcrmination ofpersonal and property rights, must also be determined by th e DOH.

OIP Op, 090-23, 990 WL 48237 at p. 7,Other language inthe 977 statute seemed to require that the information requested must

also b e necessary for e determ ine "on of personal or property rights, but the Op in io n c o nc lu d edthat would be a repugnant interpretation. See 01 Opinion 90-23, 1990 WL 482371,

In 1991, the Legislature of the State of Ita ji amended sec "on J38 8, HRS, to restorethe "direct and tangib e interest" language. and remove the requirement that the informari ncontained inthe vital records to be released be necessary for the determination of personal or

petty rigbts in order to ge the records. The Legislature gave no criteria beyond the categorieson the list that could be used to show a direct and tangible interest in record.

Because the expli "t pro .sioos of soc "on 338-18 establish exactly who is enti ed toa c c es s con fi d en ti al vital records and because P la in ti ff n eve r claimed to have a direct and tangibleinterest in the President' s birth certificate or an entitlement based on any of the pro isions fsect ' n 338-18 the State is pr hibited from diselo "tng to P aintiff the records she seeks.

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Furthermore, the tate is not only prohibi cd from disclosing confidential vital records toPlainti section 92F17, HRS? makes it a riminal offense to do so if the isclosure is made witha.ctual knowledge that it is prohi ired.

[92F- 7 J Criminal penalties. (a) An officer OT employee of an agency ..intentionally discloses or provides a copy of a govem m en rec ord , Or any confidentialinformation explicitly described y spec ' c confi cntiality statutes, to any person Oragency with actual 0 edge tha disc osure is prohibited, shall b e guilty of amisdemeanor, unless a grcate penalty is otherwi provided for by law.

(b) person who intentional ~ gains a cess to or obtains a copy of a governmentrecord y false pre ense bribery or theft, with actual knowledge that access is prohibited,r who intentionally obtains any confidential inform atio n by false pretense, bribery, ortheft, with actual knowledge that it is prohibi cd [by1a confidentiality statute, shall b eguilty of a misdemeanor.

HRS 92F- 7.Plaintiff s e e k s access to the Pres dent' s original birth record, ut she does not c aim to

have a direct and tangible interest inthe record, nor does s e h av e o ne. Plaintiff' s complaintcontains no allegations that Plaintiff is a person wilh a direct and tangib e interest as requ i red byHRS .>3&-18. I~et, the De end3nts and their counsel have been unable to discern thatPlaintiff has any direct and tangible "merest in the President's birth record from any of thedocuments that Plaintiff bas sent to the Defendants . Plaintiff submits that the fact that th ePresiden ha s made his birth certificate available to the public makes lIRS 338-18 inapplicable.However, there is no provision in Hawaii tate aw that allows an individual to waive the. tate'sbligation. Theref re, the Plain: o f f is not entitled to the record she seeks and thus ails 0s ate a

cairn n tel"ef may be granted.v. CO CLU 10

The Defendants, by and through their attorneys, respectfu ly request that this Honorab cCourt dismiss Plaintiff's complaint because P intiff's attempted service of process onDefendants was insufficient, this court lacks subject matter jurisdiction, and Plaintiff falls l State

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a c laim upon w hic h relief can be g ra nte d g iv en that s e is t e ntitle d to th e in fo rm a tio n sh esee ks p ursu an t to H RS 33 8-1 8.

D ATED : Hono ulu , Haw ai i,September 2, 20 1DA M _ . O IEAt omcy GeneralState of Hawaii

Attomeys f or De fendan t

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TAITZ v FUDDY, et al. (HI Cir. Ct.) - MOTION TO DISMISS - 64115865