ICA Rejects Birther's "Compelling" Need for President's Birth Certificate

Justice v. Fuddy (ICA April 7, 2011)

Background. Dr. Robert Justice requested from the director of the State Department of Health an inspection of the original birth certificate for "Barack Hussein Obama II" based on the Uniform Information Practices Act (UIPA). Dr. Justice explained that the inspection would allow him "to determine whether or not Mr. Obama is eligible to hold the Office of President." The director denied the request. Dr. Justice filed a complaint seeking a judgment ordering the disclosure and inspection of the birth certificate. The DOH filed a motion to dismiss. Dr. Justice opposed on the grounds that HRS § 92F-12(b)(3) required all government agencies to disclose "records pursuant to a showing of compelling circumstances affecting the health or safety of any individual[.]" The circuit court granted the motion on the grounds that, inter alia, Dr. Justice failed to show circumstances affecting his health or safety. Dr. Justice appealed.

Not just Anyone can see a Birth Certificate. The department of health "shall not permit inspection of public health statistics records . . . unless it is satisfied that the applicant had a direct or tangible interest in the record." HRS § 338-18(b). A birth certificate or record is a "public health statistic." HRS § 338-1. There are thirteen various circumstances that are considered persons with a "direct or tangible interest." HRS § 338-18(b). Dr. Justice does not dispute the circuit court's finding that he had no such interest. Rather, he contends that Hawai'i's UIPA compelled disclosure of the certificate.

But what about the Freedom of Information? Generally, "government records are open to public inspection unless access is restricted or closed by law." HRS § 92F-11(a). Upon request, "the government records available for inspection and copying during regular business hours[.]" HRS § 92F-11(b). However, agencies are not required to disclose "[g]overnment records which, pursuant to state or federal law . . ., are protected from disclosure[.]" HRS § 92F-13(4). On the other hand, the "records pursuant to a showing of compelling circumstances affecting the health or safety of any individual" must be disclosed. HRS § 92F-12(b)(4).

ICA Assumes (Without Deciding) that UIPA Overrides Other Non-Disclosure Statutes. The State argued that Barack Obama's birth certificate is a record "protected from disclosure" pursuant to HRS § 338-18(b). Dr. Justice, however, argued that HRS § 92F-12(b)(4) compels disclosure upon a finding of certain circumstances. The ICA noted that Dr. Justice may be right--that upon a finding of circumstances affecting the health or safety of the individual, disclosure is required--but did not decide as a matter of law that HRS § 92F-12(b)(4) overrode HRS § 92F-13(4) because there was insufficient evidence for the compelling circumstances anyways.

Dr. Justice's Argument for the Birth Certificate: Foreign-born Presidents are "our Enemies." Dr. Justice argued that inspection of Barack Obama's birth certificate is necessary to verify his eligibility to serve as President of the United States. The president, according to Dr. Justice, is the commander in chief and is "entrusted with our nuclear and chemical arsenals[.]" Verifying that Obama is qualified to serve as president ensures "that our military and our nuclear and chemical arsenals are still under our control and not in the control of any one of our enemies."

ICA Turns to Federal Statute to Interpret "Compelling" Need. The ICA examined the word "compelling" in HRS § 92F-13(b)(4). Based on dictionary definitions, the ICA noted that "compelling" typically means something "overpowering" or "[u]rgently requiring attention." The ICA also noted that HRS § 92F-13(b)(4) is identical to the federal Privacy Act, 5 U.S.C. § 552a(b)(8), which permits disclosure upon "a showing of compelling circumstances affecting the health or safety of an individual." In construing a state statute with language similar to federal statutes, courts "may look to the interpretations of analogous federal law[.]" French v. Hawaii Pizza Hut, Inc., 105 Hawai'i 462, 467, 99 P.3d 1046, 1051 (2004). At least one federal court concluded that the need is "compelling" only in "life and death situations." DePlanche v. Califano, 549 F.Supp. 685, 704 (W.D. Mich 1982). Moreover, the legislative history of the federal statute shows that the compelling circumstances were intended for "valid emergency situations, such as an airline crash or epidemic, where consent cannot be obtained because of time and distance and instant action is required[.]" H.R. Rep. No. 93-1416, at 13, 93rd Cong., 2d Sess. (1974).

Personal, non-Congressional Determination of Obama's Qualifications are not "Compelling." Here, the ICA held that Dr. Justice's reasons were not "compelling." The ICA pointed out that while Dr. Justice may have a strong personal reason for verifying the President's qualifications, only Congress has the power to remove a sitting President. Dr. Justice has no authority to determine Mr. Obama's qualifications, which diminishes any "overpowering" need for the document.

Natural Born Killers: The Problem with Dr. Justice's Logic. Article II of the United States Constitution states that only those born in the United States may be president. This is the "natural born" requirement. What does proving that Mr. Obama is not qualified show other than he is not qualified? It does not prove that he is an enemy to the United States. Plenty of American citizens--like Arnold Schwartzenegger--were born elsewhere, and are not qualified to run for president, which is why John Dean thinks Art. II, Sec. 1 of the U.S. Constitution is antiquated. American citizens born in other countries are not enemies of the people. Moreover, there are plenty of non-citizens who are not enemies of the United States. The faulty logic works both ways too. Does proving that a person is qualified to serve as president of the United States render that person a friend of the United States? Not at all. Timothy McVeigh was born in the United States and would be qualified to serve as president. He is considered by most an enemy of the people. So were Nazi propagandists, Robert Henry Best and Mildred Gillars (a.k.a. Axis Sally) as well as those who, with John Wilkes Booth, conspired to assassinate President Abraham Lincoln, all of whom were convicted for treason against the United States. So does proving that Mr. Obama is not qualified to serve as President mean that he is an enemy? Does a foreign-born president threaten national security? Hardly.

Judge Leonard's Concurrence. Judge Leonard wrote separately to emphasize that Dr. Justice has no authority to determine Mr. Obama's qualifications for the Office of President. Only Congress has the power to remove a sitting president. Because there was no life-threatening or overwhelming need for the documents, Dr. Justice failed to show "compelling circumstances" for them pursuant to HRS § 92F-12(b)(3).


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