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APPELLANT WILLIAM WOLFS REPLY TO STATE OF HAWAIIS ANSWERING BRIEF

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CAAP-12-0000499 IN THE INTERMEDIATE COURT OF APPEALS STATE OF HAWAII ___________________________________ ) WILLIAM WOLF, ) CIVIL NO. 11-1-2276-09 [GWBC] ) Plaintiff-Appellant, ) APPELLANT WILLIAM WOLFS ) REPLY TO STATE OF HAWAIIS vs. ) ANSWERING BRIEF ) LORETTA FUDDY, in her official ) FIRST CIRCUIT COURT capacity as Director of the Department ) of Health, State of Hawaii, ) ) THE HONORABLE Defendant-Appellee. ) GARY W.B. CHANG, JUDGE )

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WILLIAM WOLF 600 Industrial Way West Eatontown, NJ 07724 Phone: (732) 222-1800 Facsimile: (732) 389-9191

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Electronically Filed Intermediate Court of Appeals CAAP-12-0000499 14-JAN-2013 10:35 AM

TABLE OF CONTENTS Page TABLE OF AUTHORITIES I. ARGUMENT A. B. i

Cleansing the Answering Brief . ............................................................................ 1 Issues Not Disputed By the Parties 1. 2.

Appellant is Not One of Those Listed in the Text of HRS 338-18. ........... 4 If Appellants Complaint Does State a Valid Cause of Action, the Court Has Jurisdiction and Authority to Order Summary Judgment for Appellant. ............................................................................. 4 Appellant has Standing to Maintain Count 3, a Cause of Action Based on Federal Law. .............................................................................. 4 It is Immaterial Whether the State Department of Health Cited the Uniform Practices Act to Deny Appellants Request to Access Obamas Birth Records. ............................................................................ 5

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2. 3.

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D.

The Attorney General Erroneously Contends That the Statutory Protection Afforded by HRS 338-18 Cannot be Waived ....................................... 7 The Attorney General Contends That Waiver of the Protection Afforded by HRS 338-18 is Legally Impermissible. . ............................... 7 There is No Pertinent Hawaiian Case Law on the Waiver Issue. . ............. 7 The Linchpin of the Attorney Generals Argument is Unfounded and Misleading. .......................................................................................... 7

The Federal Constitution Requires Judgment for Appellant, Whether or Not State Law Allows Access to Obamas Birth Records................... 6

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The Statutory Protection Afforded to Obama by HRS 338-18 is Not a Privilege Specified by the Hawaii Rules of Evidence [HRE] and HRE Rule 511 Does Not Apply to Obamas Disclosure. .................... 5

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TABLE OF CONTENTS (cont.) Page 4. It Does Not Contravene Hawaiian Public Policy To Permit a Waiver of HRS 338-18. . ............................................................................ 9 The Attorney General Erroneously Argues That There Was No Waiver by Obama. . .................................................................................... 9

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The Uniform Information Practices Act Provides Access to Obamas Birth Records, Even If Waiver of HRS 338-18 Did Not Occur ...................................................................................................... 10

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CONCLUSION ................................................................................................................ 10

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TABLE OF AUTHORITIES Page CASES AFL Hotel & Restaurant Workers Health & Trust Fund v. Bosque, 110 Haw. 318, 132 P. 3d 1229 (2006) .................................................................................................................... 4 Clark v. Capital Credit & Collection Serv., 460 F.3d 1162, 1170 (9th Cir. 2006) . ........................ 9 Deputy v. Lehman Bros., Inc., 374 F. Supp. 2d 695 (U.S.D.C. E.D. Wisc. 2005) . ....................... 8 Justice v. Fuddy, 125 Haw. 104, 253 P. 3d 665 (2011) . ................................................................ 2 New York v. Hill, 528 S. 110, 120 S. Ct. 659, 145 L. Ed. 2d 560 (2000) ..................................... 9

Ravelo v. County of Hawaii, 66 Haw. 194, 658 P. 2d 883 (1983) . .............................................. 3 CONSTITUTIONS AND STATUTES U. S. CONSTITUTION

Art. II, 1, cl. 4 ............................................................................................................... 6-7 HRS Chapter 92F, Uniform Information Practices Act (UIPA) . ................................................... 4
PART I. GENERAL PROVISIONS AND DEFINITIONS

HRS 92F-2(5) ................................................................................................................ 10

PART II. FREEDOM OF INFORM ATION

HRS 92F-13 ................................................................................................................... 10 HRS Chapter 338, Part I, State Public Health Statistics Act

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HRS 338-18 ...................................................................................................... 3, passim

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Paul v. Dept. of Transportation, State of Hawaii, 115 Hawaii 416, 168 P.3d 546 (2007). ........... 3

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TABLE OF AUTHORITIES (cont.) Page RULES Hawaii Rules of Evidence

HRE 511 ......................................................................................................................... 5-6

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CAAP-12-0000499 IN THE INTERMEDIATE COURT OF APPEALS STATE OF HAWAII ____________________________________ WILLIAM WOLF, Plaintiff-Appellant, vs. LORETTA FUDDY, in her official capacity as Director of the Department of Health, State of Hawaii, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 11-1-2276-09 [GWBC]

APPELLANT WILLIAM WOLFS REPLY TO STATE OF HAWAIIS ANSWERING BRIEF

APPELLANT WILLIAM WOLFS REPLY TO STATE OF HAWAIIS ANSWERING BRIEF COMES NOW Plaintiff - Appellant William Wolf (Appellant), appearing pro se, and pursuant to Hawaii Rules of Appellate Procedure (HRAP) Rule 28(d), files this Reply to the State of Hawaiis Answering Brief. This Reply is timely filed. I. ARGUMENT A.

Cleansing The Answering Brief

The Answering Brief (AB) submitted by the Attorney General (AG) contains objectionable advocacy that does nothing to facilitate fair and orderly consideration and resolution of the real issues in this case. The brief is permeated with aspersions, red herrings, and straw men. Even worse are the AGs misleading and unfounded contentions of law. The AG wasted no time in erroneously labeling Appellant a birther, and his lawsuit a part of the birther movement. [AB, l] Appellant acknowledges that the second count in his three count

explicitly declared that his appeal is not pursuing that count. [OB, 3] Neither of the other two counts alleges any falsity. Appellants motive, whatever it might be, is not relevant. The core issue is access under the statute to records related to Obamas birth possessed by the State of Hawaii. Their authenticity or

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Complaint alleged falsification of documents [ROA 17-20], but Appellants Opening Brief (OB)

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falsity is simply irrelevant in this case. [OB, 1-2] In a later footnote, the AG admitted that Appellant was not in fact pursuing the dismissal of his fraud claims. [AB, 3] Under these circumstances, no useful purpose is served by the AGs ideologically-driven labeling. Another irrelevant birther reference is contained in the AGs quote regarding the plaintiff in Justice v. Fuddy, 125 Hawaii 104, 112, 253 P. 3d 665, 673 (App. 2011), (Justice). [AB, 14] Specifically, the plaintiff in Justice was held not to have the power or authority to question the eligibility of Barack Obama (Obama) to serve as President. The AGs far from clever subliminal point is obvious -- Appellant also has no such power or authority.

The AG directly resurrects the same straw man later in its brief. [AB,18] This time the AG vigorously argues the law is CLEAR, and includes a more extensive quote from Justice. Appellant, however, has never suggested, alleged, or claimed he had such power or authority. It has never been an issue in this case. More importantly, such authority or power is not a prerequisite for access to Obamas birth records, under either federal or state law. This line of attack is simply a waste of the Courts time.

Perhaps the Court thinks such aspersions, red herrings, and straw men are within the bounds of permissible or tolerable advocacy. Appellant can only voice his objection and reply that they add nothing to what is necessary to decide the real issues in this case. Ultimately, it is the Court that

Unfounded or misleading contentions of law, however, must always be out of bounds. Sadly, the AGs brief crossed that line several times. By far the most egregious is the AGs unconditional

by the statute cannot waive the right. [AB, 10-13] Obviously, that unconditional contention is absolutely essential to the AGs claim that Obama could never waive the protection afforded him by Section 338-18, Hawaii Revised Statutes (HRS). Appellant exposes and demolishes that claim,

the AGs advocacy could be so wrong in misstating the applicable law should trouble the Court.

Appellant raised a new issue on appeal, and therefore that issue should not be considered because not preserved in the action below. [AB, 14] This is startling, given that Appellants case never got

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Although less troubling and egregious, the AG also crossed the line when advocating that

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infra. Minimal legal research reveals that the AG is absolutely wrong about the applicable law. How

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contention that where a statutorily created right serves a public policy purpose, the person protected

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determines the impact of such tactics, and the attention which it wishes to divert to them.

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past the pleading stage. When a contention of law is the newly raised issue on appeal, why is there a problem? The AGs position is in direct conflict with the cases and excerpts quoted in the AGs brief regarding the legal principles that govern appellate review of the dismissal of Appellants Complaint. The AG has submitted the following: 1. The trial courts ruling is reviewed de novo;

2. A dismissal should not be sustained unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief; and 3. The court must view a complaint in a light most favorable to the plaintiff in order to determine if the allegations therein could warrant relief under any alternative theory. [AB, 4-5] Appellant concurs with these legal principles. Indeed, they are identical to those that Appellant previously submitted. [OB, 6] To highlight the importance of the third principle above, Appellant reiterates his previous citation and reliance on Ravelo v. County of Hawaii, 66 Haw, 194, 199, 658 P. 2d 883, 886 (1983). (Ravelo) [OB, 6] Noteworthy is that Ravelo was never mentioned by the AG.

Should any contention of law by Appellant be foreclosed? Further, how does the AG

Courts holding and rationale in Ravelo? Appellant is not foreclosed, and there is no legal basis for the AGs position. To claim otherwise was unfounded and misleading. After making the bald

Paul v. Dept. of Transportation, State of Hawaii, 115 Hawaii 416, 168 P.3d 546 (2007), and claimed it is well settled that appellate courts will not consider an issue not raised below unless justice so requires. [AB, 14] That case in fact dealt with a lower court record that involved a contested hearing

Appellants, which never got past the pleading stage, would minimize intolerable additional lawyering on this point. Slipshod research and advocacy, if not worse, is a more realistic explanation. The AGs methodology here should trouble the Court.

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with testimony, findings of fact, and argument. To respond that the Paul case is inapposite to

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assertion, no discussion or analysis followed. Instead, the AG chose to insert a footnote, point to

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reconcile advocating such foreclosure with the third principle above and the Hawaiian Supreme

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B.

Issues Not Disputed By The Parties 1. Appellant is Not One of Those Listed in the Text of HRS 338-18.

Appellant has never claimed that he is one of those entitled to access Obamas birth records pursuant to HRS 338-18. Appellants suit has always accepted the validity of that statutory law. His suit, however, does challenge application of that statute to his request, both under federal and state law. Count 3 contends that the Eligibility Clause of the federal Constitution bars any state law or action that prohibits access to a sitting Presidents records. Count 1 relies on state law and contends that HRS 338-18 does not govern Appellants request because of either (1) a waiver by Obama of that statutes protection or (2) the fact that the Uniform Information Practices Act (UIPA) overrides HRS 338-18, even if there is no waiver by Obama.

The AGs brief repeatedly declares that the text of HRS 338-18 precludes access by Appellant. Such perseverance adds nothing to what is indisputable. It does, however, suit the AGs efforts to obscure its failure to address all of the real issues that should be addressed. 2. If Appellants Complaint Does State a Valid Cause of Action, the Court has Jurisdiction and Authority to Order Summary Judgment for Appellant.

Appellants OB spelled out the legal basis for the conclusion of law that this Court has jurisdiction and authority to consider and grant summary judgment in Appellants favor. [OB, 1719]. Of course, a prerequisite is that Appellants Complaint has stated a valid cause of action. The AG has not contested that a remand in this case may be unnecessary, if the lower courts

Restaurant Workers Health & Welfare Trust Fund v. Bosque, 110 Haw. 318, 132 P. 3d 1229 (2006), and the unique circumstances of this appeal.

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bring his federal claim was not mentioned. [AB, 17-18] True to form, however, very early in that

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When Count 3 was directly addressed at the end of the AGs brief, Appellants standing to

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principled argument to the contrary may not be attainable, given the holding in AFL Hotel &

Appellant Has Standing to Maintain Count 3, a Cause of Action Based on Federal Law.

dismissal of the Complaint is reversed. This failure to contest is not surprising. Formulation of a

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brief the AG snuck a comment that Appellant failed to provide any authority in the lower court regarding standing to bring such a claim. [AB, 3] If the AG wants to contest standing at this level, just say so. Again, the formulation of a principled argument is quite an obstacle. The AG certainly must realize how common it is for state courts to confront and decide federal questions. It occurs every time, as in this case, when it is claimed that federal law precludes application of state law. 4.

It is Immaterial Whether the State Department of Health Cited the Uniform Information Practices Act to Deny Appellants Request to Access Obamas Birth Records.

When reciting procedural history, Appellants OB commented on the clarity, or lack thereof, as to which law or laws the State Department of Health (DOH) cited to deny Appellants written application. But Appellant has never contended it was material to how any relevant issue should be

that confounds applicants, whether lay persons or attorneys.

Instead of addressing some obviously material issues that are before the Court, the AG chose here to address immaterial comments of Appellant. [AB, 15-16] Even the pertinent part of the form was replicated. [AB, 2] As Appellant never claimed materiality, he concurs with the AG that the format of DOHs denial is immaterial to this appeal. 5.

The Statutory Protection Afforded to Obama by HRS 338-18 is Not a Privilege Specified by the Hawaii Rules of Evidence [HRE] and HRE Rule 511 Does Not Apply to Obamas Disclosure.

Appellant acknowledges that Rule 511 of the Hawaii Rules of Evidence (HRE) was one theory of waiver alleged in Count 1 and asserted in the lower court. But during this appeal the operation of that statute as establishing waiver is not being pursued. Nothing in Appellants OB advocated or relied on HRE Rule 511. Only common law principles of waiver are being advocated by Appellant to establish waiver. The AG has nevertheless chosen to argue Rule 511 and what privileges are subject to waiver under that rule of evidence. [AB, 9-10] Appellant has obviously

V, including Rule 511, might under other circumstances be applicable to Obamas world-wide disclosure.

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abandoned his Rule 511 waiver theory. Therefore this Court need not consider whether HRE Article

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decided. His point was, and still is, that the format employed by DOH reflects a bureaucratic maze

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This concession does not extend to all of the AGs argument under Caption #2 at AB, pp. 9-10. Specifically, the AG made comments, outside the scope of HRE Article V, which wrongly summarize Appellants position. For example, Appellant assumed in his OB at p. 8 that what is protected by HRS 338-18 is a right, not a privilege. But the AG mistakenly changed right to right to privacy. If that entire page of the OB was read, it is difficult to understand how that was an honest mistake.

The right assumed by Appellant was precisely postulated as follows: birth records are protected to a limited degree by the obligations created by 338-18 . The result is confidentiality of birth records, albeit with some connotation of privacy. Accordingly, Wolf will hereafter refer to it as a limited right to confidentiality as to ones birth records. [OB, 8] C.

The Federal Constitution Requires Judgment for Appellant, Whether or Not State Law Allows Access to Obamas Birth Records

State law is academic or moot if Appellants Complaint has stated a valid cause of action based on federal law. Appellants case is truly one of first impression. The federal question posed is without precedent. Indeed, the only courts known to have faced this federal question are this Court and the lower court that dismissed Appellants Complaint.

Before it can decide how the rules of pleading should be applied to Count 3, this Court must

AGs brief, when discussing pleading rules, fails to recognize this fundamental point. [AB, 4-6] In other words, the AGs position about the sufficiency of Appellants pleading is directly tied to what

caption entitled Nothing in the United States Constitution Gives Appellant a Right to Access Hawaiis Confidential Vital Records. [AB, 17-18] Scrutiny of the comments under that caption reveals that the AG has submitted nothing to contest or refute Appellants syllogism in his OB at

The AG did not challenge nor refute any of the individual components that comprise Appellants syllogism. Most important, however, is that the AG did not address the hypothetical questions that flow from that syllogism. The AGs declination to do so speaks volumes. It signals that the AG found no flaws in Appellants syllogism, and that the resulting hypothetical questions

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pp. 15-17, spelling out how the Eligibility Clause should be interpreted.

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is set forth under a different caption, in less than a full page, at the end of the AGs brief under the

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first interpret or define the nature and scope of the Eligibility Clause in the federal Constitution. The

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and answers (1) correctly define the nature of the Eligibility Clause, and (2) illustrate how that federal provision makes state law inapplicable to Appellants request for Obamas birth records. But the AG is merely an advocate. The Court is the one that decides the worth of Appellants syllogism and his hypothetical questions and answers. Appellant submits that this Court must address and answer the question of whether it would be a lawful exercise of federal power to enact a law that restricted public access to the birth records of the President. If not, the state of Hawaii has no greater power. Once the Court completes its analysis of Appellants position and arrives at its own interpretation of the Eligibility Clause, it should conclude that no state law can block Appellants request for access to Obamas birth records.

Accordingly, Count 3 states a valid cause of action, and the lower courts dismissal must be reversed. Further, as the only fact necessary to state that cause of action is that Obama is the sitting President, a remand is unnecessary. That fact is indisputable, and Appellant is thus entitled to immediate summary judgment and reversal of the lower courts contrary ruling. D. The Attorney General Erroneously Contends That the Statutory Protection Afforded by HRS 338-18 Cannot be Waived 1. The Attorney General Contends That Waiver of the Protection Afforded by HRS 338-18 is Legally Impermissible.

policy purpose, the person protected by the statute cannot waive the right. Specifically, the AG contends that waiver can never be permitted, regardless of the circumstances surrounding disclosure,

2.

There Is No Pertinent Hawaiian Case Law on the Waiver Issue.

The AG understandably cited no Hawaiian case law directly on point, and Appellant has found none. Unless case law on point is found elsewhere, or there is a Hawaiian case on a similar

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issue, the result is argument by the parties based on analogies and common sense. 3.

applying Wisconsin law. The AG characterized the Hawaiian case as ruling on a similar issue. That was a consumer protection case, contractor versus consumer. No government records were 7

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Only two cases were cited by the AG; one from Hawaii and another from a federal trial court

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The Linchpin of the Attorney Generals Argument is Unfounded and Misleading.

and thus Obama can never waive the statutory protection afforded him by HRS 338-18. [AB, 10-13]

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The crux of the AGs position is that where a statutorily created private right serves a public

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involved, nor any confidential data. The federal case, Deputy v. Lehman Bros., Inc., 374 F. Supp. 2d 695 (U.S.D.C. E.D. Wisc. 2005) (Deputy), also involved no government records or confidential data. Due to an apparent dearth of case law, the way the AG presented Deputy and the excerpt that was quoted made it appear that there was judicial precedent that squarely supported the AGs contention that waiver is absolutely prohibited here.

Nothing could be farther from the truth. (1) The AG omitted crucial language to the contrary; (2) Deputy held that waiver could occur; and (3) Deputy held that waiver did occur in that case. Specifically, preceding what is quoted in the AGs brief, in the same paragraph, the Court had said: Wisconsin law contains examples where parties have been allowed to waive statutory protections. Deputy at 709. Thus, the AGs linchpin of absolute prohibition is not just misleading, but wrong. In the next paragraph to that quoted, the Court said: The more salient question is whether Wisconsin law serves a public policy purpose. Put another way, the Court must determine whether it would be contrary to public policy to permit a waiver of the provisions of section of the Wisconsin Statutes. Deputy at 710. Then, after a paragraph about Wisconsins public policy: The Court does not find that allowing Deputy to waive the protections afforded by the Wisconsin UTMA contravenes public policy. Deputy at 710. The Court not only held that the statutory protection could be waived, but went on to hold that the statutes protections were waived. Deputy

So why is the AG so wrong? Appellant leaves that up to this Court. But the stench gets worse. Deputy is not an isolated case in a far off federal trial court. Minimal research leads to other

rationale as Deputy. For example, It is true that a right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy. [citation omitted] The conditional clause is essential, however: It is not true that any private

659, 145 L. Ed. 2d 560, 568 (2000). See Clark v. Capital Credit & Collection Serv., 460 F.3d 1162,

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1170 (9th Cir. 2006).

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right that also benefits society cannot be waived. New York v. Hill, 528 S. 110, 116-17, 120 S. Ct.

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cases, including by the nations highest court, that deal with the same issue and articulate the same

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at 711.

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4.

It Does Not Contravene Hawiian Public Policy To Permit a Waiver of HRS 338-18.

The AGs position of absolutely prohibiting any waiver of HRS 338-18 protections, if it were correct, avoids any argument of the public policy underlying the law. Curiously, in the last sentence of four pages in the AGs brief advocating such an absolute rule of law, the AG did use the phrase public policy [AB 13]. But what public policy? The AGs one-sentence explanation is a tautology; the statutory obligation to protect vital records is the public policy to protect vital records.

The AG offers no argument why public policy would be contravened by recognizing the waiver in this case. Indisputable facts explain why nothing is submitted. Obama made a world-wide disclosure of confidential information. State officials not only facilitated that disclosure, but were willing and enthusiastic partners with Obama in it. Both the State and Obama agreed that public policy was advanced by disclosure, not secrecy.

Once the AG is stripped of relying on an absolute prohibition of waiver, there is no public policy that should preclude a finding of waiver. 5.

The Attorney General Erroneously Argues That There Was No Waiver by Obama.

The AG states that the undisputed circumstances surrounding Obamas world-wide

no waiver occurred. [AB, 13] The AGs statement is patently ridiculous. By simply saying could not possibly, the AG evaded addressing two pending issues. First, the sufficiency of Appellants

fact to litigate regarding Obamas alleged waiver. The first bears on whether Count 1 states a cause of action based on waiver of HRS 338-18. The second bears on Appellants motion for summary judgment on Count 1. The AGs evasion concedes that Appellants arguments on those issues are

The AGs purported analogies regarding disclosure in other situations serve no useful purpose. They muddle two issues that must be kept separate and distinct: (1) can a statutory protection be waived? (2) was the statutory protection waived here? Limited to only the question of if a waiver occurred, a review of the AGs analogies involving provision of a birth certificate for a limited purpose and to a very limited class of persons compares apples with oranges. Each 9

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correct.

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factual averments alleging waiver. Second, Appellants contention that there is no genuine issue of

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disclosure could not possibly constitute a waiver, but fails to point to any salient fact suggesting that

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situation is different, but, intuitively, Obamas conduct screams waiver and the AGs analogies, all of which involve limited disclosure of information to a mostly limited number of persons, generally with some need-to-know, scream no waiver. Using the AGs preposterous standard that Obamas worldwide disclosure did not constitute a waiver, no waiver occurred in any of those analogies. Without waiver, there is no issue of access by others. E.

The Uniform Information Practices Act Provides Access to Obamas Birth Records, Even If Waiver of HRS 338-18 Did Not Occur

The AGs brief states: Appellants argument that section 92F-2(5), HRS, should override section 92F-13, HRS, renders meaningless all of the exceptions to disclosure that are explicitly provided in section 92F-13, HRS. [AB, 7] This blatantly misstates Appellants argument.

When that sentence of the AG is read and understood in its entirety, the AG suggested that Appellant contends that section 92F-2(5), HRS, should always override section 92F-13, HRS. That certainly would render meaningless all of the exceptions to disclosure that are explicitly provided by statute.

This obviously conflicts with Appellants OB argument that detailed his contention of law that the UIPA codified an override mechanism and how it should be applied. A two-step process was described. [OB, 12-13] First, a preliminary determination and, when appropriate, a further

equates always with when appropriate, and then can reverse, is just more legerdemain. II. CONCLUSION

grant summary judgment to Appellant, and issue an order that Appellant be allowed access to inspect all birth records of Barack Obama and obtain copies thereof.

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Dated: Eatontown, New Jersey

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For the reasons set forth herein, this Court should reverse the dismissal of the Complaint,

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evaluation and decision that can reverse that preliminary determination. The AGs blatant ploy that

January 14, 2013 /s/ William Wolf William Wolf Pro Se

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