A motion to dismiss for failure to state a claim is based purely on the complaint. It basically says that there is no set of facts the plaintiff could prove that would entitle the plaintiff to the relief sought. It is essentially a challenge to the legal sufficiency of the complaint.

A motion for summary judgment, on the other hand, argues that given the undisputed facts of the case, the only possible application of the law to these facts would result in a judgment in favor of the party moving for summary judgment (usually the defendant although sometimes things like affirmative defenses are disposed of by partial summary judgment and occasionally a plaintiff wins outright on an MSJ).

Therefore, a motion to dismiss is generally filed at the outset of a case, and can only refer to the complaint itself, not extraneous material. A motion for summary judgment is often filed at the end of discovery, after facts have been established. However, if the party moving to dismiss includes such extraneous material, the court can either disregard that material or treat the motion as a motion for summary judgment, using the extraneous facts in making its decision.

I can understand why Nagamine would rather the complaint be dismissed for failure to state a claim, because that knocks all such future complaints by that party out preemptively. With a summary judgment, though, in theory the party might prevail given a different set of facts in the future.

So I understand why Nagamine wanted to keep it as a motion to dismiss. I'm less certain why Judge Nishimura wanted to take care of it as an MSJ. It may be as simple as that she wanted to use the material in the defendant's attached exhibit, but did not want to risk an appeal on the grounds of improperly relying on material outside the complaint on a motion to dismiss. However, as Stern noted, material like this exhibit (basically an agency rule) can properly be the subject of judicial notice without converting to an MSJ.

So it wasn't, frankly, necessary to turn this into a motion for summary judgment. I assume the judge had some reason for doing it, but am not sure what it was. It may just have been an abundance of caution and a dislike of being reversed on appeal, but I suspect there's something else.

I suspect it is for your reason stated: fear of reversal if the judge "improperly" looked at something outside the complaint. (And I concur that it wouldn't have been improper to rely on the regs, but abundance of caution, etc.)

Hearing report: Part 2.

Analysis and commentary time.

1: John Carroll.
The courtroom was very crowded when I arrived, so I waited in the hallway for the hearing in progress to finish. John Carroll and the student who has been accompanying him arrived while I was still in the hallway. We spoke briefly. Mr. Carroll, you may remember, is a local attorney running for the Republican nomination for the open Senate seat. He's been involved in other birther cases out here before. He's the attorney that arrived to help support (and was blown off by) Orly Taitz during her initial round of Hawaiian Failure. He's also the local attorney who represented the birthers in the Wolf v Fuddy case.

Mr. Carroll and I have run into each other outside of court a couple of times, so he knew me. He looked at the clipboard with the calendar, and commented that the 9:15 case was "part of the McCully Shopping Center thing". That, he told me, is part of a legal dispute between two brothers that's been going on for years and has involved "half the lawyers and judges in town" in one way or another. It's involved so many intertwined suits that it no longer has a case number, and is just referred to as the "Marn Family Litigation". I said that it sounded like the local version of Jarndyce v Jarndyce. This led to a few moments of confusion, as Mr. Carroll was unfamiliar with that case.

Mr. Carroll told me that he wasn't an attorney in the Sunahara case, but was "keeping an eye on it". He was at the courthouse just to observe the Sunahara hearing.

I'm not sure what to make of Mr. Carroll's presence. In fact, his overall involvement in birther matters confuses me. We know that Jerome Corsi talked about having arranged for an experienced local attorney to backstop Orly during the first Department of Health excursion. We know that John Carroll is the attorney who arrived at the Department of Health that day to attempt to help Orly. We also know that Mr. Carroll is the lawyer who was brought in by the out of state plaintiffs in the Wolf v Fuddy case - a case that to my knowledge has not been mentioned by Corsi or WND. He was at the courthouse today to watch the proceedings in Sunahara. Although he is a longshot candidate for US Senate, and running well to the right of Linda Lingle, he has not to my knowledge raised anything related to eligibility in his campaign. The impression I've gotten from the conversations I've had with him is that he's not personally a hardcore birther.

2: Judge Nishimura.
Judge Nishimura continues to impress the hell out of me, whether or not she was right to consider the State's attached exhibit as outside the face of the complaint. She is clearly extremely well prepared for her hearings. She's very familiar with the underlying law and procedure, and with all of the pleadings that are filed.

Judge Nishimura's memory frankly scares the crap out of me. During the hearing in the case before Sunahara, one of the attorneys made an argument. Judge Nishimura said - and I was looking at her, and would swear that she didn't look down at all - "and that is on page 8 of your opposition." The attorney making the argument looked at the papers before confirming that.

3: The procedural issues.
It became very clear, very quickly, that Judge Nishimura wanted to take the summary judgment route. Why is another matter. From what I gathered, Judge Nishimura was going to take a very narrow view of Rule 12(b)(6). She basically said at one point that if it didn't appear in the complaint, she wasn't going to look at it. It may be that Judge Nishimura has a thing about 12(b)(6). Looking back at my notes from the Orly hearings, I saw that Judge Nishimura raised the limitations of rule 12(b)(6) during the first hearing in Taitz v Fuddy.

It was equally clear that Ms. Nagamine really wasn't comfortable agreeing to have the motion heard as a motion for summary judgment. I'm not sure how much of that was because of the differences between the two motions, how much of that was because there were other things that she would have wanted to put into the papers if she had intended to file for summary judgment, how much of that was because she simply had not expected or prepared to argue on that basis, and how much might have been due to other factors.

4: The merits.
Once the hearing shifted from the procedural aspects to the substantive, Judge Nishimura began her search for disputed material facts. She didn't find any.

That seemed to be an easy call for the UIPA part of the complaint (counts 2 & 4). The request was made, the request was denied. There didn't seem to be much discussion of the law, either. That's probably because it's fairly clear - vital records are exempt.

It sounded like Mr. Kurashima was attempting to submit his discussion about the meaning of "or" as a disputed fact for count 1. After Judge Nishimura pressed him on the topic, he agreed that "or" can mean "and" was his legal argument. Judge Nishimura had specific questions for Mr. Kurashima regarding whether he had any evidence that would specifically indicate that the legislature intended "or" to mean "and" in this case.

That left count 3. This is the one where the complaint alleged that the DoH rules were inappropriately promulgated. I found Mr. Kurashima's argument that he did not know about the rule Ms. Nagamine referenced until he got the MtD to be interesting. I would have thought that due diligence would involve locating the applicable statutes, and that a claim that a rule was promulgated inappropriately would require at least the knowledge of the existence of the rule in question.

Judge Nishimura asked Mr. Kurashima some specific questions here. He was asked if he was evidence that would indicate that the proper procedures were not followed in promulgating the rule. He did not.

At no point did Mr. Kurashima concede that there were no material facts in dispute. He was entirely unable to locate any when asked.

5: The outcome.
Judge Nishimura did not specifically give her reasons for granting the motion. I'm sure that this is going to make drafting the order a bit more fun for Ms. Nagamine than might normally be the case.

IANL, so take the following speculation with an extra-large grain of salt.

Judge Nishimura seemed to be genuinely concerned with (or at least interested in) the policy underlying the vital records laws. When she raised the question about the effects of thousands of people going into the vault, I was pretty certain that summary judgment was going to be granted for the State.

I don't think she ever saw much merit in the UIPA portion of the complaint. She certainly did not see fit to ask many questions about that part of the matter.

I think her interest in the argument about the legitimacy of the policy that only short forms would be issued was largely restricted to the procedural question of what circumstances would let her look at the Public Health Rules that the State submitted. She wanted a clear reason on the record before relying on it. Not only was it a huge issue in the first part of the hearing, but she also pressed Ms. Nagamine to state why it should looked at in the second part of the hearing. Once Ms. Nagamine stated that she had submitted it as a true and correct copy of the rule, Judge Nishimura quickly noted that the end of the document included a list of public notices and hearings, and read those into the record. I suspect that Judge Nishimura may have viewed the allegation that the rule was improperly promulgated as a possible source of a factual dispute. Once Mr. Kurashima had acknowledged that he had no evidence that there was anything improper and the list of hearings and notices was read into the record, Judge Nishimura was done with that issue.

That left the interpretation of 338-13 as the remaining issue. By this point, Mr. Kurashima had stated that treating "or" as "and" was his legal interpretation, and had failed to present any material fact in dispute. The remaining question seemed to be whether 338-13(a) gave the Department of Health or the requestor the discretion to choose whether to issue a copy of the long form or a computer-printed short form.

Mr. Kurashima was able to demonstrate that under Hawai'i law, the word "or" may be read as meaning "and". He was able to demonstrate that under HRS 338-13, the Department of Health may issue a long form certificate. He showed that there is a provision in the Public Health Rules that said that the Department of Health may allow an individual access to inspect records under certain circumstances. He was not able to convert any of those "mays" to "must".

A fallback argument here would be that the Health Department "abused its discretion" or "acted arbitriarily" (or whatever the applicable standard is) when it denied Sunahara's request. Did Sunahara's attorney attempt to make that argument? This is where the "why?" (why does Sunahara need the long form, and to witness its duplication in the vault) aspect might come into play.

Hawai'i procedure seems to be the same as California's on judicial notice. If adequate prior notice is given (this may be the rub), judicial notice may be taken of agency regulations:


Is it possible Jill Nagamine didn't use magic words in asking Judge Nishimura to take judicial notice of the regulations, and that to protect the record Judge Nishimura proceeded as she did? Beats me. I tend to doubt anyone did anything wrong but that Judge Nishimura was just being extra careful.

No attempt to make that argument was made whatsoever.

That would be my guess. Judge Nishimura was very definite on not accepting anything beyond the face of the complaint when considering the Motion to Dismiss, but she was at least as careful to make sure that both parties were on record agreeing to have the MtD treated as a summary judgment motion.

http://www.orlytaitzesq.com/?p=32941

Taitz: The case was FOGBLOWN.

Funny that Taitz doesn't realize this was Haskins' baby, and that she could look on the BS site.

Salem, OR's resident diehard birther regaled us with this today:

I love how any record that birthers ask for that they don't get is somehow "sealed". No issues of privacy, or the like. It's all CORRUPTION.

Would this person like it if anyone randomly could walk up to an office and ask for their grades, medical records, or birth certificate, just because? Doubtful (they might say "Why not? I don't care" but that's because no one would ask for theirs).

Just because a record isn't available to any random yahoo that asks for it doesn't mean it's "sealed". It could just mean its none of their business.

Wrong thread Foggy

!	Foggy wrote:
	Damned posts titled "Birther Potpourri" in this thread. Misleading.