wolf v fuddy(hawaii-doh) - transcript of proceedings - obama's birth certificate hearing -...

8/3/2019 Wolf v Fuddy(Hawaii-DOH) - Transcript of Proceedings - Obama's Birth Certificate Hearing - First Circuit Court of Ha…

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Official Court Reporter

First Circuit CourtState of Hawaii

PERMISSION TO COPY DENIED, HRS 606.13, etc.

1

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

WILLIAM WOLF,

Plaintiff,

vs.

LORETTA FUDDY,

Defendant.

))

)))))))))

CIVIL NO.11-1-2276

TRANSCRIPT OF PROCEEDINGS

Had before the HONORABLE GARY W. B. CHANG, Judge

presiding, on Thursday, December 8, 2011, in the

above-entitled matter; to wit, Motion to Dismiss

Complaint to Compel Agency to Disclose Public Records

Under The Uniform Information Practices Act (UIPA),

Filed 9/30/11.

APPEARANCES:

JOHN S. CARROLL, ESQ.RICHARD C. KING, ESQ.

JILL NAGAMINEDeputy Attorney General

REBECCA QUINN

Deputy Attorney General

For the Plaintiff

For the Defendant

REPORTED BY:Jessica Akita, RPR, CSR #461Official Court ReporterState of Hawaii



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2

THURSDAY, DECEMBER 8, 2011 HONOLULU, HAWAII

THE CLERK: On the civil motions

calendar, calling case number 2, Civil Number 11-1-2276,

William Wolf versus Loretta Fuddy for Motion to Dismiss

Complaint.

Counsel, please state your appearances.

MS. NAGAMINE: Good afternoon, Your

Honor. Jill Nagamine and Rebecca Quinn, Deputies

Attorney General representing the movant defendants.

MR. CARROLL: Good afternoon, Your Honor.

John Carroll together with Mr. King, who's been admitted

for pro hac vice for the answering party.

THE COURT: All right, who's gonna be

arguing this?

MR. CARROLL: Oh, I'm sorry. Mr. King

will be arguing, Your Honor.

THE COURT: Okay.

MS. NAGAMINE: And I will, Your Honor.

THE COURT: Okay. All right. Counsel,

please have a seat. We're here for the hearing on the

Defendant's Motion to Dismiss. Okay, Ms. Nagamine.

MS. NAGAMINE: Thank you, Your Honor. Do

you prefer that I go -- rehash my pleadings?

THE COURT: No, I prefer not.

MS. NAGAMINE: Okay.



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THE COURT: I didn't think a --

MS. NAGAMINE: Actually, at this point

then I'm gonna reserve my argument to respond to the

plaintiffs.

THE COURT: Well, let me ask you.

MS. NAGAMINE: Oh, okay.

THE COURT: Let's say that an individual

believes that he has a claim against the President

because he questions his place of birth, how would they

go about investigating that to see whether he does in

fact have a right?

MS. NAGAMINE: Well, it would rest in

Congress, the U.S. Congress to initiate some kind of

proceeding. So I would think that the appropriate

avenue would be for that individual to get someone from

Congress to sponsor some kind of initiative and follow

through on eligibility claims in that manner.

THE COURT: Citizens don't have the right

to pursue such a claim?

MS. NAGAMINE: No, they don't, Your

Honor, other than going through channels that end up

with the U.S. Congress.

THE COURT: Why is that? I'm not

familiar with the congressional proceeding, but is that

some exclusive remedy that's established by statute?



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MS. NAGAMINE: I believe by the United

States Constitution, and I think I have a footnote, if I

can actually -- instead of just guessing here. Oops,

I'm sorry. And this actually was cited by the court in

the Justice versus Fuddy case. Pardon me. Oh, yes. On

page eight of my moving papers, under the United States

Constitution the power to remove a sitting president

resides in Congress, and that's case law Barnett versus

Obama.

THE COURT: So not the Justice case?

MS. NAGAMINE: No. Well, Justice

reaffirms that. The Justice versus Fuddy case that was

decided earlier this year does affirm that the

determination of the eligibility of the President rest

with Congress.

THE COURT: Exclusively?

MS. NAGAMINE: I believe so, Your Honor.

I believe that's correct.

THE COURT: You sure now because I don't

want you to misrepresent. Because if you say exclusive,

I mean, I rely on that a lot. That makes a huge

difference.

MS. NAGAMINE: Yeah, I know it does, so

that's why I'm hesitating. I --

THE COURT: So if you don't know don't



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guess because I'll call you back and sanction you if you

misrepresent --

MS. NAGAMINE: Yeah.

THE COURT: -- something of that

magnitude.

MS. NAGAMINE: Yeah, I don't want to do

that, so I'm also reluctant to say I don't know, but I

think the answer at this point is I don't know. I

believe that it's an exclusive remedy for Congress, but

I don't --

THE COURT: Because I don't see --

MS. NAGAMINE: -- I don't know for sure.

THE COURT: -- I don't see exclusive in

your footnote.

MS. NAGAMINE: No, and it is -- it is not

in the footnote.

THE COURT: Okay.

MS. NAGAMINE: Let me see if there is

something of that nature in the Justice versus Fuddy

case, which I have brought with me.

THE COURT: (Nods head.)

MS. NAGAMINE: I'm looking at Section 4

of the Justice versus Fuddy case which states, "Under

the United States Constitution, the power to remove a

sitting president resides in Congress," and it does cite



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the Barnett versus Obama case. "Plaintiffs asserted me

to inspect President Obama's birth records is diminished

by the fact that plaintiff does not have the power or

authority to determine President Obama's eligibility to

serve as president." I can't represent anything further

than that, Your Honor.

THE COURT: Okay.

Mr. King, do you know whether or not Congress

has the exclusive jurisdiction to determine the

President's fitness or qualification to serve as

president?

MR. KING: Your Honor, I do not, and we

are not seeking to remove the President. In fact this

case does not involve a challenge to the President's

eligibility at all. In fact the first two of our three

causes of action are totally irrelevant to his status as

president. They could equally involve the birth records

of John Doe.

My client was concerned when the White House

published what is obviously to experts is a forged

document, and that is what we are seeking is to

determine what that document is and how it was forged.

And, again, how it was forged is really not relevant.

It's just a question: Is that document a true copy of

records possessed by the Department of Health? And



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that's the grounds for our case entirely.

THE COURT: So it's just curiosity? Is

that the --

MR. KING: Not idle curiosity, Your

Honor. No --

THE COURT: What is the direct --

MR. KING: -- it's a -- it's a concern.

THE COURT: Excuse me.

MR. KING: Yes.

THE COURT: What is the direct and

tangible interest of your client?

MR. KING: As a citizen in having seen

what he believes to be a fraudulent document to

establish the eligibility of the President.

THE COURT: To what --

MR. KING: He has no power to remove it.

THE COURT: To what end?

MR. KING: To what end? To the end that

it suggests government malfeasance at some level.

Hopefully not within the government of Hawaii, but

somebody involved in government has obviously produced a

forged document, and I think any citizen has an interest

in that issue.

I've spent my entire career, Your Honor,

opposing government and the misdoings of its various



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agencies, and in this case that's what Mr. Wolf asked me

to do is to investigate that issue.

THE COURT: You have case law that says

your client's interest is a direct and tangible interest

within the meaning of the statute?

MR. KING: I think any citizen has a

direct and tangible interest in the activities of

government. Case? I have not cited one, no. But we

don't believe that the direct and tangible interest is

required under the provisions that we are utilizing.

That direct and tangible interest comes in the

recitation in the statute of those persons who are

specifically named. We are not one of those named

people, never claimed that we are.

THE COURT: Okay. Let's go to the Rules

of Evidence. Why would Rule 502 of the Hawaii Rules of

Evidence provide a basis for maintaining this action?

MR. KING: We think not a basis for

maintaining it but Rule 502 applies because it deals

with -- and I will turn to it -- required reports

privileged by statute. And the documents involved in

here -- the records involved here are such reports.

They all, you know, Rule 502, the following rules, they

fall under Rule 501 which states that these privileges

are, you know, only as provided by law, and it provides



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exemptions or exceptions to them again. The overriding

principle of the Hawaii law is openness of all

government records. There are exceptions to that, and

then in turn are exceptions to those exceptions as we

have cited, false statements, not fraud, as the

government keeps repeating, possibly fraud, but we don't

have to prove fraud. All we have to prove is that these

statements in that record are false.

THE COURT: Now, you haven't practiced

before me, so I'll tell you that when I ask a specific

question I usually prefer a specific answer.

Now, I saw at least two bases for opposing this

motion. One was based on Rule 502 of the Hawaii Rules

of Evidence, the other was Rule 511. We'll get to 511.

MR. KING: Uh-huh.

THE COURT: But I'm curious, first of

all, 502. So it doesn't really help you to talk about

everything under the sun. It helps you to talk about

Rule 502. So tell me why Rule 502 applies in this

case --

MR. KING: All right.

THE COURT: -- to defeat this motion.

MR. KING: As we see from, you know, the

recitation in 502 and the commentary --

THE COURT: Well, why don't you tell me



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who 502 applies to.

MR. KING: 502 applies to any -- any

proceeding. In fact if you read Rule 1101 you'll see

that the government is arguing that 502 and 511 don't

apply here, but Rule 1101 provides that these rules are

applicable to, A, the courts and we're in court.

THE COURT: Okay. Let -- I think I was

-- I asked an unartful question. Look at the language

of Rule 502, and who does it apply to?

MR. KING: You mean the recitation at the

beginning: Persons, corporations and so forth or other

organizations or entities, either public or private

making a return or report.

THE COURT: Okay.

MR. KING: However, the case is in

addition to those making the return or report obviously

include reports that involve a person who did not

himself make the return or report but about whom that

return or report was -- was made or filed.

THE COURT: What case is that?

MR. KING: Excuse me. When I say

"cases," it's the records rather than specific cases

would indicate that. Records and the ones recited in

the second paragraph of the commentary, you know,

records relating to the Department of Social Services



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and Housing. Obviously those records are about a person

not filed by that person necessarily. Same thing

accident reports, cancer records and so forth. So these

are records about a person but not say the subject of or

the owner, if you will, of those records, not the person

who actually produces the record, necessarily; or in

this case the record was produced by someone else but on

behalf of the child born. Child obviously can't create

the record, but the record was created on his behalf.

THE COURT: So what authority do you

have, case law or otherwise, to suggest that the child

on a birth record has a privilege recognized under

evidence rules?

MR. KING: I think certainly in this

jurisdiction that is a case of novel impression. I

don't think that there is a case. One has to do it by

logical analysis, if you will, of other cases decided,

other types of records.

THE COURT: You know, we have a lot of

privacy laws and HIPAA is one that comes to mind,

obviously. Family Court has privacy records. So those

may create certain privacy interest, but what we're

looking at here is a privilege. So who holds the

privilege under 502?

MR. KING: Well, the privilege is held by



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the individual, the owner of the record, if you will,

the subject of the record. The documents are maintained

by the Department of Health, but their interest is, as

we have pointed out in our -- in our briefing in the

commentary, on behalf of the record owner or subject not

on their own behalf.

THE COURT: You're saying that the

Department of Health has no interest in maintaining the

confidentiality of these records?

MR. KING: No, they have a statutory

obligation to do so.

THE COURT: Yes.

MR. KING: But the -- that obligation,

that interest is not on their own behalf. Again, that

would be contrary to the whole purpose of the statutory

scheme which is openness of records. It's to protect

the interest of the subject or owner of that record not

that they have no interest themselves in it. As I say,

the fact that after 75 years, that's an open record.

You know, this isn't a secrecy statute. It's a privacy

statute. So there is no reason that the Department of

Health should not release those records. In fact they

do all the time to interested parties and the owner, you

know. Again, there are other provisions in the, you

know, in the privacy acts that allow the person who is



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the subject of that record to release it.

THE COURT: Right.

MR. KING: There are other cases where

everybody named in the record, if they agree, it can be

released. So there, obviously, is no interest in the

Department of Health in maintaining secrecy of that as

long as the subjects have consented.

THE COURT: Right.

MR. KING: Or in this case waived.

THE COURT: Well --

MR. KING: And there's been a common law

waiver here. There's nothing left to preserve. There's

no privacy interest.

THE COURT: But except your client is not

one of those recognized within a right to those -- these

records?

MR. KING: No, he doesn't.

THE COURT: By statute.

MR. KING: No, he's not and we never

contended that he does or is, rather. What we've said

is when the owner of that record waives, he waives this

to the entire world.

THE COURT: Okay, why don't you tell me

where does it say Barack Obama has a privilege under

502? Tell me what language confers a privilege on -- on



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Barack Obama to waive.

MR. KING: Well, I think I have said it

that while he is not the one making the return or

report, the return or report was made on his behalf.

THE COURT: Who has the 502 privilege?

Look at the language and tell me who has the 502

privilege?

MR. KING: Well, again, that says, "a

person, corporation or other organization or entity,

either public or private making a return or repot

required by law to be made has a privilege to refuse."

Now, again --

THE COURT: What language?

MR. KING: -- the person -- huh?

THE COURT: Where are -- where are you

reading that language?

MR. KING: From the official text of Rule

502.

THE COURT: I don't see that language.

Has it been modified? Are you reading an amended rule?

MR. KING: I've got the third edition.

No, I'm not -- excuse me. I'm sorry. I pulled this

copy from the office -- from Mr. Carroll's office. I

believe that was current in our brief. I took it off

the -- off the court's website, so.



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THE COURT: You said that the holder of

the privilege is the person, corporation, association or

other organization or entity has the privilege, and I

don't read that language in there. So can you read the

exact language that says who holds the privilege?

MR. KING: All right, Rule 502 -- and,

again, this is as I transcribed it from the --

THE COURT: Okay. Now, again --

MR. KING: Sorry.

THE COURT: -- I asked a specific

question.

MR. KING: Uh-huh.

THE COURT: I'm not asking you to read

the whole rule. I want you to read the language, the

specific language regarding who owns the privilege under

Rule 502.

MR. KING: Again, that first sentence

which is as I read it. "Rule 502 required reports

privileged by statute," and that's -- this is the body

of the -- of the rule as I obtained it from Hawaii's

website. And, again, it's who holds it; a person,

corporation and association, et cetera. Now, that was

the language as I read it. I'm sorry, Your Honor. I

don't see where we disagree as to whether that is the

language of the rule or where we're at odds on how that



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applies to which party.

THE COURT: So -- and you agree that

President Obama is not among those listed?

MR. KING: Not specifically named, no.

THE COURT: Okay. Then you think this

court should interpret the rule as extending a privilege

to the President as the subject of this report?

MR. KING: Yes, the President or anyone

else as the subject of the report. Again, a lot of

these reports are not prepared by the person who is the

subject of the information, but they are prepared and

filed by someone else on their behalf or regarding it.

Now -- I mean, the rule does also -- it goes on

to say that the public officer or agency has a similar

privilege. But in looking at the commentary that

privilege is on behalf of the party, not on the agency's

own behalf. That's the -- that's the first paragraph of

the commentary to Rule 502.

THE COURT: So at least two parties have

a privilege? The President, you claim has a privilege?

MR. KING: Uh-huh.

THE COURT: And the defendant Ms. Fuddy

for the Department has a privilege?

MR. KING: Yes, Your Honor.

THE COURT: Can President Obama waive Ms.



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Fuddy's privilege?

MR. KING: He can't waive Ms. Fuddy's,

no.

THE COURT: So he can waive his own

privilege?

MR. KING: His own, that's correct.

THE COURT: And he's done that, yes?

MR. KING: Yes.

THE COURT: And your client has that

document?

MR. KING: That document? Which

document, Your Honor?

THE COURT: The birth certificate?

MR. KING: Oh, the one that was published

online, yes.

THE COURT: Yes. Okay.

MR. KING: Yes.

THE COURT: Now, what about the defendant

Ms. Fuddy's privilege under Rule 502?

MR. KING: Again, that does not relate to

her. And once the owner of the privilege or the primary

privilege, however we wish to characterize it, once the

owner of the record has waived the privilege, then the

Department of Health has no further privilege to

protect. It's gone.



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THE COURT: Okay.

MR. KING: All that information has been

-- and I believe the words of the statute are disclosed

and that is what's happened in this case. In that

disclosure, there's no residual privilege under the

Department of Health. I mean, again, there's nothing to

be disclosed, no information that hasn't been disclosed,

so it's gone.

THE COURT: Okay. Ms. Nagamine, as to

Rule 502.

MS. NAGAMINE: As to Rule 502 -- first of

all, Your Honor, this -- I would argue that there is not

a privilege for this document. There's a statutory

mandate that the Department of Health maintained this

document and only give access to this document to those

people with a direct and tangible interest. In fact

only a copy of the facts contain -- the data contained

in the document to those with a direct and tangible

interest. The original record maintained in the vault

is not something that is even given to the President.

So what was given to the President and was

surrounded by press releases and letters and everything

has been published online everywhere, that was a copy

which was certified by the state registrar Alvin Onaka,

witnessed by the Director Fuddy. All of this is stated



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in Director Fuddy's letter to the President, and all of

this is a public record because the President made it

public. The correspondence that took place regarding

the -- how the President received a long form or a vault

copy of his document.

So what the President has and what Director

Fuddy -- Director Fuddy is still in charge of those

original documents and still has the law 338-18 that

mandates her to protect the confidentiality of that

record except for people who have a direct and tangible

interest.

And I should be careful when I use the word

"record" because I'm really sometimes talking about

data. The director has the duty to protect the data

except to those who have a direct and tangible interest.

And so 502 doesn't apply to the President at

all. But even if it did, even if it did, what -- and

even if he waived something, he might have been waiving

some right for somebody to see that copy that the

director and the registrar certified for him. But

nobody has waived anything as to the original copy that

is maintained in the vault at the Department of Health.

So, first of all, Your Honor, I would say 502

doesn't apply to this at all. But if it did the holder

of the privilege, if there was a privilege, would not be



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the President as to this vault copy that is being

sought. Director Fuddy is the one who -- and the

registrar are the ones who are charged with maintaining

that record and its confidentiality.

THE COURT: Well, when you say "its

confidentiality," isn't the cat out of the bag when the

President disclosed it online? So what's confidential

about it?

MS. NAGAMINE: The cat is out of the bag

as to the data.

THE COURT: What --

MS. NAGAMINE: But --

THE COURT: What do you mean by "data" as

compared to the information contained in the certificate

of live birth?

MS. NAGAMINE: It's the same.

THE COURT: Okay.

MS. NAGAMINE: It's the same.

THE COURT: So isn't the data or the

certificate -- isn't it published online by the

President? And, if so, doesn't that destroy the

confidential nature of the data?

MS. NAGAMINE: It's arguable but not in

terms of what the Department has to keep confidential.

And keep in mind, Your Honor, we're talking



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about an original copy. Plaintiff, through their

underlying Uniform Information Practices Act request,

their 92F request, asked for access to the original copy

in the vault of the Department of Health, and that was

denied them. And that was actually denied based on

338-18, which is the law that mandates the Department to

not disclose this, except to those with a direct and

tangible interest.

But the underlying claim here, I don't believe

plaintiffs are seeking another copy of the data. I

don't think they're seeking another certified copy to

which they are not entitled. I think they are seeking

access to that original underlying document that was

Xeroxed and certified and given to the President, and

they're claiming somehow that that thing that the

President has published is somehow a forgery.

THE COURT: I think they're claiming that

someone on the government's part forged the document.

That's what I gathered from Mr. King's remarks earlier.

MS. NAGAMINE: If -- if that is their

claim, they have given nothing to suggest that Alvin

Onaka, the state registrar, or Loretta Fuddy, the

Director of Health, did anything on their end when they

were Xeroxing and certifying that document. There have

been no claims about that. No, there -- I have heard



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nothing that suggest that the Department of Health has

been dishonest.

THE COURT: Okay. Well, what -- as I

understood the comments of Mr. King, initially, is it's

not the concern that President Obama altered it. His

concern is that the government itself altered it.

That's what I understand his client's concern to be.

MS. NAGAMINE: In wading through the

exhibits provided in the errata which, by the way, we

did ask the courts to strike those because I don't

believe they were submitted properly. But in wading

through those anyway the examination of -- of the

document was the examination of the document that was

found online. So this is kind of a copy of a copy.

There was a certified copy of the original made for the

President. So the President has that piece of paper.

And then -- then it was out of the Department of

Health's hands. He can do whatever he want with it --

wants with it. And he, apparently, had that copied in

some manner, I'm guessing, on a PDF scan, but I have no

idea how he copied that to make it come out visible on

the Internet, on his link, but he somehow did that. And

the evaluation of that PDF copy is what we're seeing in

these exhibits.

So I don't think we represented with anything



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that suggest that the underlying document was a forgery.

I think what we're saying is a request to see that

underlying document to determine if in fact this copied

document is a forgery, and there's -- there is no basis.

In fact in law from Chapter 338, when the Department

certifies its copies, 338-14 -- 1445, the certification

of copies, it is certifying the underlying data is held

by the Department of Health, and it is certifying the

facts of the case -- the facts of the data that those

facts are -- are facts.

I'm not sure I've answered Your Honor's

question, but I really -- I didn't see anything

presented by the plaintiffs that is suggesting that what

is held in the vault is a forgery only that those things

that were copied by the President are a forgery of what

they think might be in the vault, but nobody's seen

what's in the vault -- I mean, well, the plaintiff

hasn't seen what's in the vault.

THE COURT: Why doesn't 502 apply to this

case?

MS. NAGAMINE: Because what -- what the

President -- first of all, there's nobody -- let me read

from 502:

"A person, corporation, association or

other organization or entity, either public or private,



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making a return or report required by law to be made has

a privilege to refuse to disclose and to prevent any

other person from disclosing the return or report if the

law requiring it to be made so provides."

As far as I can tell, Your Honor, the best

example of what this does apply to is something like tax

returns. Those are reports that are required by law to

be made.

THE COURT: Isn't a certificate of live

birth required to be made?

MS. NAGAMINE: Yes. Under Chapter 338,

yes. The physicians at the hospital or the attending

midwife or physician or whoever knows the facts of the

birth is required to make a report and give that

information to the Department of Health. But that would

then -- if we take that reading of it -- which actually

I think is fair to do. If we take that reading of it,

then Kapiolani Hospital would be the person or Dr.

Sinclair would have been the person required to make

that report, and then they would have a privilege, I

believe, to tell plaintiffs, "I don't have to tell you

what's in this report that I had to make." But we're

not talking about those things. We are talking -- this

report has been made. It's now held and protected by

the Department of Health. And the Department of Health



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then follows Chapter 338 which requires that it maintain

and protect and only give access to the data to people

with a direct and tangible interest. And we don't

actually have any provision whatsoever for anyone to go

in and see the original records.

In fact in 1961 there were original records

made, but nowadays there's no piece of paper. It's all

done electronically. I believe 1993 or something is

when that all occurred. Same for death registration.

It's all done electronically. So the information, the

data, is housed in a computer. So if somebody wants to

see that there's a whole computer with a whole slew of

information much of which is not -- wouldn't be

something that even the registrant, the person named in

the birth certificate, would even be entitled to see,

but public health statistics. Those types of things.

But anyway I'm getting a little far afield here.

I just wanna say that in 1961, when the

President was born, it would have been Kapiolani

Hospital or Dr. Sinclair, one of those. I don't know

who; would have given this document to the Department of

Health. The Department of Health has the data on that

document. That data is what is protected. And the

original document really doesn't come into play. Nobody

sees the original document. It's not given out.



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If Your Honor followed any of the links -- I'm

not sure. I think plaintiff may have put a link in

their document to the President's website, and on the

President's website he has his letter of request through

his attorney Judy Corley to the Department of Health

asking, "is there something that I can do to get the

long form vault copy of my certificate because there's

been a lot of questions and concerns, and I would like

to end them." So the Department of Health, Director

Fuddy then figured out a way to give him that. The long

form is not what is routinely provided to people now who

get their birth documents. The abstract is what's

given. But Director Fuddy made an exception because it

was the President and because she herself wanted all of

the request to stop.

The Department of Health has been getting

volumes of request to see the President's -- to verify

the President's birth in Hawaii despite what's already

been published. And so the Director sent, along with

the certified copies, that she did provide him. He --

the President purchased two copies, and along with those

copies the Director sent him a letter telling him the

process that she had used to copy what was in the vault.

THE COURT: Well, you're not helping me

with understanding whether or not 502 applies in this



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case.

MS. NAGAMINE: Well, I would say it

doesn't, Your Honor, because the person who was required

to make that report might have had a privilege under

this and that would be either Kapiolani Hospital or Dr.

Sinclair. But this doesn't apply to the Department of

Health or the plaintiff. I would say the -- this

evidence rule does not apply to the situation. What we

have to look at solely is 338-18.

THE COURT: Let's say that there is a --

a Child Protective Service situation and there's an

abuse of a child, and the Child Protective Services

called the police department. So the police department

comes, does an investigation. And let's say

unfortunately the child dies. So police department

prepares a report, submits it, and then years later the

CPS is sued by the family of the child. CPS now wants

to get a copy of that report, and, of course, in that

report it documents what CPS did or didn't do in the

investigation by the police department. Are you saying

that if the police department didn't want to release

that, that CPS could not get that document?

MS. NAGAMINE: There are two ways that

CPS could get that. One, and I wish I could remember

the statute, I believe it might be HRS 346-14.6. I



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really could be wrong about that. But there's a

specific statute carve out exception that allows for CWS

investigations, people doing those investigations to

obtain vital records, specifically investigators for CWS

to obtain vital record information. So -- and I

apologize. I may not have cited the exact statute. I

know it's in Chapter 346 and that's a carve out.

There's a second way if it doesn't fit that. And the

second way comes with 338-18(b)(9). One of the list of

direct and tangible interest is a court order where the

court determines that there is a need to have the record

-- there's a direct and tangible interest for whatever

is presented to the court, and the court makes the

determination that there is a direct and tangible

interest. So I believe those would be two ways for

someone to get that child's birth or death report.

THE COURT: So if this court were to

issue an order -- denies this motion and issues an

order, then Director Fuddy will turn the documents over

to the plaintiff?

MS. NAGAMINE: I'm going to choose my

words carefully, Your Honor. I -- if such an order

would probably go above my head but normally, yes.

Normally yes. We get orders for vital records pursuant

to 338--18(b)(9) routinely. Yes, we do, and we honor



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them.

THE COURT: What do you mean it goes

above your head?

MS. NAGAMINE: I would probably have to

go back to my office and say, "Judge Chang made this

kind of order, does anybody in the AG's Office have

something to say about that?"

THE COURT: Oh.

MS. NAGAMINE: I'm just a deputy, Your

Honor.

THE COURT: You're not just a deputy.

You're lead counsel on this case.

MS. NAGAMINE: Well, Ms. Quinn and I are

-- we share it. I'm -- I am the attorney for vital

records and Ms. Quinn does our litigation. So we're --

we're sharing that, actually.

THE COURT: Okay. You're lead counsel

today.

MS. NAGAMINE: Every day, Your Honor.

Your Honor, may I interject something at this point?

THE COURT: You may.

MS. NAGAMINE: If the court is thinking

of making such an order -- and I hope the court is

not -- but if the court is, I would suggest to the court

that it will solve nothing.



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THE COURT: Well, you're getting way

ahead of yourself.

MS. NAGAMINE: Okay, well --

THE COURT: This is a motion to dismiss.

MS. NAGAMINE: Well, okay.

THE COURT: Okay. So that -- whether or

not I issue an order is not part of this proceeding.

MS. NAGAMINE: Okay. Okay.

THE COURT: Not today.

MS. NAGAMINE: I'll hold off on that

then.

THE COURT: I look at 502, and would you

agree that it creates two classes of persons who have

privileges under 502? The first sentence creates a set

of privileges for those submitting the report, and the

second sentence creates a privilege to your client with

respect to that report or certificate.

MS. NAGAMINE: I think the operative

words in that second sentence would be if the law

requiring to be made so provides. So that would be the

law in 338 that requires the return of the information

of the birth information if that law that requires that

also, to follow this language, would -- would require

some sort of disclosure of the record, if I'm reading

this properly and understanding your question properly.



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So -- and I don't believe we have that here. So while,

yes, there might be a second prong to this privilege

here, I think we go back to 338-18 to govern what gets

disclosed by the Department of Health.

THE COURT: Doesn't that second part of

the sentence you referred to refer to whether or not the

law requiring the report creates a privilege?

MS. NAGAMINE: I think it does. That's

how I would read this.

THE COURT: And does Chapter 338 create a

privilege not to disclose?

MS. NAGAMINE: The -- see I'm really

reluctant to use the word "privilege" because I just

don't see it as a privilege here. That's kind of a term

of art used in the evidence code, and this is more of a

statutory mandate. But, yes, to answer your question,

Chapter 338 requires that information come into the

Department of Health and also mandates how the

Department of Health treats that information.

THE COURT: Okay.

MS. NAGAMINE: So that is all contained

within Chapter 338.

THE COURT: Okay. Let's ask Mr. King.

Do you agree that we have to look to Chapter 338 to see

whether Chapter 338 creates a privilege on behalf of



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anyone?

MR. KING: Your Honor, I would say yes

and let's, if we may, work through the language of

Chapter 338. It's a chapter section, I believe.

Section 338-18 paren A provides for

nondisclosure of, quote, "vital statistics records,"

closed quote. The commentary to Rule 502 includes

under, quote, "privilege provisions," closed quote.

Those found in statutes dealing with, quote, "vital

statistics," closed quote. So the records that we're

talking about, the vital statistics in issue, are

privileged provisions provided under the law and

recognized by the integration or, if you will,

consideration of the whole statutory scheme. And

although not specifically citing Section 338, if you

look at the commentary and the commentary's discussion

in the second paragraph of the commentary of the

characteristics of such privileged provisions you see

those found in statutes dealing with social services,

again, the vital statistics, health and motor vehicle

safety, et cetera. And they go on to cite examples.

Now, those examples are not exhausted, but they do

include others very similar to the one in question here.

And, again, by the very nature of these records,

the privilege is not that of the person who prepares the



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record or generates it, if you will. You're talking

about mental health records. You're talking about the

tumor registry that's obviously got very sensitive

medical information about patients, you know. I'm sure

the hospital who does the tumor research and keeps these

records is not particularly concerned on their own

behalf about any privilege or any privacy in these

records, but they're protecting the privacy of their

patients, and there are a number of these. Again, 338

isn't specifically mentioned, but you've got 287, 324,

334, 336. These are all statutory provisions governing

operations that involve sensitive personal information.

And, again, this is Rule 502 integrated with 338

applies. You know, the people who drafted the evidence

code and as you probably well know the evidence code in

regard to privilege was very difficult to deal with,

both on the federal level and amongst the state. So it

amounted to somewhat of a compromise. But the purpose

of that code is consistent with the purpose of the

information statute within Hawaii.

THE COURT: You're familiar with the

statutory construction principle that the specific

governs over the general?


THE COURT: Would you say that Rule 502



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that government records should be transparent except for

those that have a law saying they shouldn't. And so

that law in this case is 338-18. So that transparency

of open records can't apply because there is this reason

in 338 that the legislature determined that these

records are so personal and private that they should not

be exposed to everybody, unless they've got some

business seeing them. So that's my only comment as to

how Mr. King was correlating the two chapters and saying

that you can't look at one alone, but I think you have

to look at one alone.

THE COURT: Well, if -- there are two

sentences in 502, the first and the second. It's

contended by the plaintiff that President Obama is one

of the individuals who has the privilege in the first

sentence. Now, let's assume that for the sake of the

next question that the President is a holder of the

privilege in the first sentence, and that when he

published his birth certificate online he waived his

privacy or confidentiality as to his birth certificate,

would you say that his waiver of his privilege in

sentence one constitutes a waiver of the privilege in

sentence two? And if not, why not?

MS. NAGAMINE: You've kind of thrown a

double hypothetical at me, Your Honor.



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THE COURT: No, I'm asking, if Obama --

if President Obama waived the privilege, is it waived as

to the second privilege, which I think applies to your

client as well?

MS. NAGAMINE: See, we have to ask what

it is he'd be waiving. He is the owner of a certified

copy of an original record. So to the extent that

there's any privilege that applies to him it's to what

he holds. So maybe -- let's -- okay, let's assume that

he holds a privilege as to "the record," I would

maintain that "the record" is the one that he has his

certified copy. And separating that out from the second

sentence -- and I'm doing my best here, Your Honor --

the second sentence talking about the public officer or

agency, if that's Director Fuddy who -- who has a duty

to not disclose because there's -- well, I'm trying to

tie in Chapter 338 as we've discussed a few minutes ago.

I still think under 338, even though that is the statute

that requires the information and data come in, it also

requires that the data be protected in a certain way.

And I would maintain that sentence one, if President

Obama has a privilege, it is only to his document. And

if Director Fuddy has a privilege, it is to what she

holds, that original in the vault.

I'm hoping that addresses -- I mean, that's how



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I would interpret these two sentences. But keep in mind

I'm having a very difficult time filling -- fitting this

interpretation into this because I'm so persuaded that

there is not a privilege here, at least not regarding

the original vital record in the original data. So to

the extent that there's a privilege at all, it's -- may

be held by the President as to that certified copy of

the document that he owns.

THE COURT: Okay. Mr. King, any response

to Ms. Nagamine's last remark?

MR. KING: Yes, Your Honor. And it may

not be specifically what you're looking for here, but

it's something that she did say, the copy of the

original record in the files, if you parse the language

carefully of the statements that were released by the

various parties in Hawaii and elsewhere, you will not

find anywhere a recitation that we went to the vault,

retrieved the original document, made copies thereof,

gave them to the President's lawyer or the statements

from the President's lawyer that I then carried those

copies to the White House and those were what was

released by the White House. And I'm sorry if Your

Honor understood me to say it was the government of

Hawaii I'm pointing the finger at in this case. I'm

not. It's obvious from what was released by the White



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House that there has been, at some stage, a forgery

regarding this document. Again, it could've --

THE COURT: When you say it's obvious, on

what basis do you say it's obvious that the final

document that released was forged by the White House?

MR. KING: Expert opinions, Your Honor,

that have not, as of yet, been challenged.

THE COURT: I see.

MR. KING: And those have been submitted

to the court, and I have consulted with those exports --

experts, rather, and I am convinced from what they have

told me, from what they have demonstrated to me that

that document as released is not a true copy of a paper

original maintained anywhere. It is a construct.

And, again, so you got three people or three, if

you will, groups of parties. You've got Hawaii

government officials. You've got lawyer for President

Obama. You've got the White House. Could have happened

at any stage in that process. But for, again, from what

I'm told by the experts, that document that was released

was an electronic document. It was not something that

was transmitted in paper form. So that the finger

unfortunately, I think, points to the White House,

unless contrary to the recitation of the parties and the

President's lawyer that I carried paper copies, she



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carried an electronic, you know, a thumb drive or

something in which she brought that document. But,

obviously, at some point that document as released by

the White House was forged.

THE COURT: Okay.

MR. KING: And I think I've -- have I

answered your question, Your Honor?

THE COURT: Yes.

MR. KING: I digressed a bit.

THE COURT: Yes. No, not really, but I,

basically, was asking does the waiver of the first

sentence constitute the waiver of the privilege in the

second sentence?

MR. KING: Yes, Your Honor, I believe it

does.

THE COURT: Okay.

MR. KING: I mean, the record is only --

it's the waiver, whether under common law or Hawaii

statutory law is for the owner or interested party in

the record to give. And once they have waived it there

is no inherent right by Hawaii to possess the original

document that was produced by someone else in the first

place. You know, they didn't produce that. The

hospital produced that. They're just a custodian.

THE COURT: Okay. All right. For the



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movant, any final remarks? You don't have to, but I'm

giving you an opportunity because I don't want you to

say, "Oh, the judge limited my argument by asking all

these questions." So you don't have to repeat what you

wrote. I read everything.

MS. NAGAMINE: Well, I won't repeat what

I wrote, Your Honor. Excuse me. But I think that Mr.

King just solved this for us. When he started and he

was suggesting that he's trying to expose government

inconsistencies, I don't know if that was his word, I

took it that he was suggesting that Hawaii had done

something wrong here. But he specifically said right

now he's not pointing his finger at the government in

Hawaii; that if something went wrong, it went wrong --

he's pointing to the White House, which I think bolsters

my argument to the court that if there's a problem with

whatever the President -- whatever format the President

used to put this scanned PDF copy online, then that

problem needs to be solved there. But the Department of

Health has nothing to do with that.

So -- and the rest of it, we would submit on our

paper work, Your Honor, and ask this court to dismiss

this matter. Thank you.

THE COURT: Okay. Mr. King.




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THE COURT: Open forum.

MR. KING: Just briefly. I think that

the best way to determine what was done to create an

obvious forgery is for the original document to be

examined. The law specifically provides that the court

can do that in camera. We would suggest -- and this is,

again, down the line that this could be done with

experts and under suitable controls. But I think that's

getting beyond where we are today. I think today we're

just at the point to say I think under the law, under

the law of waiver, under the Hawaiian statutory law we

clearly have a right to the information requested, and

we would ask Your Honor to dismiss the government's

motion -- or deny the government's motion. Excuse me.

THE COURT: Okay.

MR. CARROLL: We have nothing further,

Your Honor.

THE COURT: Okay.

MR. CARROLL: We very much appreciate

your patience in this case.

THE COURT: Okay. All right. This is

the Defendant's Motion to Dismiss. And, essentially,

what this boils down to is whether, under any

circumstances, the plaintiff can assert a right to

obtain the certificate of live birth that is on file



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with the defendant relating to the President, President

Obama.

The defendant contends that under Chapter 338,

which is the chapter relating to vital statistics, that

only certain individuals are entitled to a copy of the

original certificate of birth that the defendant has on

file. And there are thirteen categories of individuals

who have the right to obtain a copy of the original

document. And the defendant director contends that the

plaintiff is not one of these individuals.

The plaintiff on the other hand contends

primarily that the Hawaii Rules of Evidence regarding

privileged information governed this dispute and that

the President's disclosure of his copy of the

certificate of live birth that the defendant has on file

waives any privilege that the Department or the

defendant may have under Chapter 338. So the plaintiff

is asserting that the combination of Rule 511 and Rule

502 of the Hawaii Rules of Evidence, together with the

President's disclosure of his copy of the certificate of

live birth is sufficient enough to cause a waiver of the

protections of the defendant is availing herself of --

under Chapter 338.

So what this matter boils down to is how to

construe Chapter 338 together with Rules 511 and 502 of



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the Hawaii Rules of Evidence.

I'd first like to comment and dispose of Rule

511. Rule 511 is a restrictive provision that provides

for the waiver by disclosure of privileges that are

recognized by the Rules of Evidence. And there's a big

debate about whether or not disclosure of certificates

of live birth is such a privilege.

Then 502 is the rule under which plaintiff

contends there is a specific privilege created by

Chapter 338 that the President waived when he disclosed

his certificate of live birth.

But if we look at 502, there are two sentences.

The first two sentences create privileges for two

classes of people. And I think I need to back up and

say that this court construes the reporting of live

births as a statutorily mandated report that must be

prepared by appropriate institutions or individuals,

none of whom are the baby that was born. In the instant

case, of course, it's the President who is the baby that

was born, but either the hospital or the doctor prepared

the report or a nurse prepared the report that was

actually to become the certificate of live birth of

President Obama. So the court does believe that Chapter

338 does establish a requirement that a certificate of

live birth be filed with the Department of Health.



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502 -- Rule 502 goes on to state that in the

first sentence that a person, corporation, association

or other organization or entity that is required by law

to make a report has the privilege to refuse to disclose

and to protect or prevent any other person from

disclosing the information of the report if the law

requiring it to be made so provides. The second

sentence, instead of directing itself to the individuals

who are filing the report is directed to the public

officer or agency to whom the report is made and that

second sentence also creates a privilege to refuse to

disclose if the law requiring it to be made -- requiring

the report to be made so provide.

So we have in this instance Rule 502 that this

court views as creating two classes of individuals that

have a privilege. The first class does not include the

baby that is born by specific or general reference, but

it's argued by the plaintiff that this court should

construe the subject of the report to also have that

privilege. But this court is constrained by its reading

of the language. And when a statute or rule specifies

specific individuals that are entitled to claim a

privilege, this court reads those rules as being

required to be strictly construed. So the court does

not construe Rule 502 in the first sentence to apply to



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45

a privilege created and owned by the President. So not

being a holder of the privilege, the President cannot

waive that privilege.

The court will state that if the President did

have a privilege in the first sentence, even if he did

have a privilege, he could not waive the privilege that

belongs to the Department of Health, which has a

privilege that is created in the second sentence. So

even if -- well, the court first concludes that the

President does not have a privilege and cannot waive a

privilege to the certificate of live birth on file with

the Department of Health.

If, in the alternative, the President did have a

privilege, he could not waive the privilege that belong

-- that is created in the second sentence that belongs

to the Department of Health. Only the Department of

Health could waive the privilege created in the second

sentence.

If the President waived any privilege in the

first sentence, he only waived the privilege to his copy

of the certificate of live birth, therefore he cannot

waive a privilege that belongs to the Department in the

second sentence. Over -- excuse me. In the

alternative, the court subscribes to the general

proposition that a statute of general application must



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46

yield to a statute of specific application when the two

conflict.

In the case at bar, I look at Rules 502 and 511

of the Hawaii Rules of Evidence as statutes or rules of

general application. The court views Chapter 338, which

applies specifically to vital statistics as a statute of

limited or specific application. And based on the adage

that the specific controls over the general, the court

looks to the question of whether or not this action can

be maintained based on the accessibility of the

plaintiff to the certificate of live birth that is on

file with the defendant, and the court believes that

Chapter 338 controls over Rules 502 and 511.

Now, it's been asserted by the plaintiff that

502 and 511 should be read in conjunction with 330 --

Chapter 338. However, we have a conflict -- excuse me.

We may have a conflict if Rule 502 and 511 are construed

as the plaintiff urges. So whether or not there is an

actual conflict between the Rules of Evidence and

Chapter 338, the Court concludes that Chapter 338 is the

specific statute relating to vital records, and

therefore it is Chapter 338 rather than rules 502 and

511 that should prevail or govern the plaintiff's rights

to access the defendant's original copy of the

certificate of live birth.



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In looking at Chapter 338, particularly

subsection 18 regarding disclosure of records,

subsection B of 338-18 sets forth thirteen categories of

persons or entities who may have a direct and tangible

interest by statute to the relevant records. And to

plaintiff's credit, plaintiff candidly admits that

plaintiff does not fall within the thirteen categories.

And it is incumbent on this court to follow the language

of the statute and there is no basis to create an

exception or a fourteenth category in this matter.

The interest of the plaintiff is to investigate

whether or not some fraud has occurred in the creation

of the certificate of live birth that was published by

the President online. And it is contended that the

plaintiff has expert evidence to show that the

certificate of live birth that the President disclosed

or published online is actually a product of some

manipulation of the original document. And there is no

contention as far as this court understands that the

plaintiff intends to unseek the President. So the

question of whether Congress is the exclusive tribunal

to raise questions of the President's fitness to serve

as president, this court will not address that issue or

make any findings or conclusions relating to that issue.

But the court's ruling in this case is based exclusively



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48

upon its construction of the provisions of Chapter 338

and construing the provisions of Rules 502 and 511 of

the Hawaii Rules of Evidence. And the court

respectfully finds and concludes that Chapter 338-18(b)

prohibits the plaintiff from continuing to prosecute

this action, and under no circumstances or set of facts

can the plaintiff prevail on the plaintiff's prayer to

obtain the original certificate of live birth, or to

obtain access to the certificate of live birth under

these circumstances. So for these and any other good

cause shown in the record, the court will respectfully

grant the motion to dismiss.

The court will ask counsel for the defense to

prepare an appropriate order. Findings and fact and

conclusions of law are not necessary. The court will

elect under Rule 52, not to make findings and fact and

conclusions of law.

I state these matters for the record so that

there is a record of this court's thinking in the event

that this matter goes up on appeal. I have not

addressed all of the issues to the level of specificity

that I would have this served as a written finding or

conclusion of the court, but I did want to give counsel

some sense of what this court's thinking was because I'm

sure the respective clients will be curious.



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All right, first of all, for the movant, Ms.

Nagamine, any further record to be made or questions?

MS. NAGAMINE: One question, Your Honor.

Is the complaint dismissed with prejudice?

THE COURT: The complaint is dismissed

with prejudice, yes.

MS. NAGAMINE: Thank you.

THE COURT: Okay. Mr. King, any further

comment or record to be made?

MR. KING: No, Your Honor. No.

THE COURT: Okay. All right. Thank you

very much. Court stands in recess.

MR. CARROLL: May it please the court,

Your Honor --

(Proceedings concluded at 4:20 p.m.)

-o0o-



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50

STATE OF HAWAII

CITY AND COUNTY OF HONOLULU

))))

I, JESSICA AKITA, RPR, CSR #461, an Official

Court Reporter for the First Circuit Court, State of

Hawaii, do hereby certify, only upon placement of my

original signature below, that the foregoing pages 1

through 50 comprise a full, true and correct

transcription of my stenographic notes taken in the

above-entitled cause, to the best of my ability.

Dated this 9th of December, 2011.

JESSICA AKITA, RPR, CSR #461


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