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Transcript of Wolf v Fuddy(Hawaii-DOH) - Transcript of Proceedings - Obama's Birth Certificate Hearing - First...
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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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?
MR. KING: Yes, Your Honor.
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.
MR. KING: Yes, Your Honor.
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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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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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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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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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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
Official Court Reporter