Sunahara v Fuddy - 2012-02-28 - Sunahara Memorandum in Opposition to Motion to Dismiss

8/2/2019 Sunahara v Fuddy - 2012-02-28 - Sunahara Memorandum in Opposition to Motion to Dismiss

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GERALD H. KURASHIMA 5071-0American Savings Bank Tower, Suite 1310

1001 Bishop Street

Honolulu, Hawaii 96813

Phone: 545-5120Attorney for Plaintiff

Duncan Sunahara

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

DUNCAN SUNAHARA,

Plaintiff,

vs.

DEPARTMENT OF HEALTH, STATEOF HAWAII, LORETTA FUDDY, IN

HER OFFICIAL CAPACITY AS

DIRECTOR OF THE DEPARTMENT

OF HEALTH, STATE OF HAWAII;JOHN DOES 1-10; JANE DOES 1-10;

DOE CORPORATIONS 1-10; DOE

PARTNERSHIPS 1-10; AND DOEGOVERNMENTAL ENTITIES 1-10,

Defendants.

________________________________

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CIVIL NO.: 12-1-0006-01 [RAN]

[DECLARATORY JUDGMENT]

PLAINTIFFS MEMORANDUM IN

OPPOSITION TO DEFENDANTS MOTIONTO DISMISS COMPLAINT, FILED ON

JANUARY 3, 2012; MEMORANDUM INOPPOSITION TO DEFENDANTS

MOTION TO DISMISS; EXHIBITS 1 TO 5;

DECLARATION OF DUNCANSUNAHARA; DECLARATION OF

GERALD H. KURASHIMA; CERTIFICATE

OF SERVICE

HEARING

DATE:MARCH 8, 2012

TIME: 9:30 A.M.JUDGE: RHONDA A. NISHIMURA

PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS

COMPLAINT, FILED ON JANUARY 3, 2012

COMES NOW Plaintiff Duncan Sunahara, through his attorney, Gerald H. Kurashima, and

files This Memorandum in Opposition to Defendant Department of Health, State of Hawaiis

Motion to Dismiss Complaint, filed January 3, 2012. For the reasons stated, this Court should find

that Plaintiff has stated claims for relief and Defendant is not entitled to dismissal under HRCP,Rule 12(b)(6), or summary


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judgment under Rule 56, and Defendants motion should be denied.

DATED: Honolulu, Hawaii, .

GERALD H. KURASHIMA

Attorney for Plaintiff

Duncan Sunahara

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STATE OF HAWAII

DUNCAN SUNAHARA,

Plaintiff,

vs.

DEPARTMENT OF HEALTH, STATEOF HAWAII, LORETTA FUDDY, IN

HER OFFICIAL CAPACITY AS

DIRECTOR OF THE DEPARTMENT OFHEALTH, STATE OF HAWAII; JOHN

DOES 1-10; JANE DOES 1-10; DOE

CORPORATIONS 1-10; DOEPARTNERSHIPS 1-10; AND DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.__________________________________

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CIVIL NO.: 12-1-0006-01 [RAN]


MEMORANDUM IN OPPOSITION TODEFENDANTS TO MOTION TO DISMISS

MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS

I. STATEMENT OF THE CASE

Plaintiff Duncan Sunahara is the natural brother of Virginia Sunahara, deceased. On or

about November 22, 2011, Plaintiff requested from the State of Hawaii, Department of Health

(hereafter referred to as State), an estimate of the cost and expense to obtain a certified copy of

Virginia Sunaharas original Certificate of Live Birth (hereafter Birth Certificate), pursuant to

Hawaii Revised Statute 338-13(a). As stated in the Complaint, the Department of Health did not

provide an estimate of the costs or provide a copy of Virginia Sunaharas original Birth

Certificate. The Department of Health had previously provided a computer generated abstract of

Virginia Sunaharas birth certificate. (See Abstract of Birth Certificate as Exhibit 1). However, a

computer generated abstract is not a certified copy of an original birth certificate.

Defendant State contends that because it provided a computer generated abstract of the

birth certificate, the Plaintiff is not entitled to a certified copy of Virginia Sunaharas original

Birth Certificate, and Plaintiff also is not entitled to have access to that original. (States

Memorandum in Support of Motion to Dismiss, at pp. 2-3).

However, HRS 338-13(a) expressly states, the department of health shall upon request,

furnish to any applicant a certified copy of any certificate, or the contents of any certificate on file

in the department. . . (Emphasis added). (See HRS 338-13, as Exhibit 2). HAWAII RULESOF

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EVIDENCE, Rule 202(b) requires mandatory judicial notice of law. The court shall take judicial

notice of (1) the common law), (2) the constitution and statutes of the United States and of every

state, territory, and other jurisdiction of the United States, . . . (Emphasis added).

Defendant State is required to produce a copy of Virginia Sunaharas original Birth

Certificate, and not merely a computer generated abstract HRS 92F-11(d) also states, Each

agency shall assure reasonable access to facilities for duplicating records. . . The Plaintiff has

sufficiently stated claims for relief which precludes dismissal or summary judgment.

II. ARGUMENT

A. THE DEPARTMENT OF HEALTH IS REQUIRED UNDER HRS 338-13(A),TO PROVIDE A CERTIFIED COPY OF ANY CERTIFICATE. THE

DEPARTMENT HAS NOT MET ITS STATUTORY OBLIGATION BY

PROVIDING ONLY A COMPUTER GENERATED ABSTRACT.

1. Plaintiff is Entitled to a Certified Copy of Virginia Sunaharas OriginalBirth Certificate Under the Plain and Unambiguous Language of HRS

338-13(a)

Defendant State claims that it produced a computer generated abstract of Virginia

Sunaharas birth certificate and that is all Plaintiff is entitled to obtain. The State contends, there

is no provision in either section 338-13 or 338-18, HRS that states that Plaintiff is entitled to

obtain a certified copy of Virginia Sunaharas original birth certificate. . . In addition, the State

claims that the Director of the Department of Health has the authority to choose the process by

which copies of vital records are made. (Emphasis added). (States Memorandum in Support, p.

4).

The issue before this Court is the interpretation of HRS 338-13(a) and whether the

Department of Health and State have properly interpreted, implemented and complied with the

statute. Interpretation of a statute is a question of law for the courts. Maile Sky Court Co., Ltd. v.

City & County of Honolulu, 85 Haw. 36, 39, 936 P.2d 672 (1997). The construction of statutes

and other laws is a matter which ultimately is for the court. More than a power, construction is a

duty which the court must exercise and cannot surrender or waive. . . final responsibility for the

interpretation of the law rests with the courts. (Emphasis added). 2 Am Jur 2d ADMINISTRATIVE

LAW 85.

Under Hawaii law, The primary duty of the courts in interpreting statutes is to ascertain

and give effect to the intention of the legislature which, in the absence of a clearly contrary

expression, is conclusively obtained from the language of the statute itself. (Emphasis added).

Stop H-3 Association v. State of Hawaii, 68 Haw. 154, 161, 706 P.2d 447 (1985).

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In Mathewson v. Aloha Airlines, Inc., 82 Haw. 57, 71, 919 P.2d 969 (1996), the Hawaii

Supreme Court held that, The fundamental starting point is the language of the statute itself. . .

Where the language of the statute is plain and unambiguous, our only duty is to give effect to its

plain and obvious meaning. In addition, departure from the plain and unambiguous language of

the statute cannot be justified without a clear showing that the legislature intended some other

meaning would be given the language or that a literal interpretation would produce absurd or

unjust results that are clearly inconsistent with the purposes and policies of the statute. The court

concluded, [W]here there is no ambiguity in the language of the statute, and the literal application

of the language would not produce an absurd or unjust result, clearly inconsistent with the

purposes and policies of the statute. . . the statute must be given effect according to its plain and

obvious meaning. (Emphasis added). See alsoReefshare, Ltd. v. Nagata, 70 Haw. 93, 99, 762

P.2d 169 (1988).The statute in question, HRS 338-13 states,

(a) Subject to the requirements of sections 338-16, 338-17, and 338-18, the

department of health shall, upon request, furnish to any applicant a certified copy of any

certificate, or the contents of any certificate, or any part thereof.

(b) Copies of the contents of any certificate on file in the department, certified

by the department shall be considered for all purposes the same as the original, subject to

the requirements of sections 338-16, 338-17 and 338-18.

(c) Copies may be made by photography, dry copy reproduction, typing,

computer printout or other process approved by the director of health. (Emphasis added).

(See HRS 338-13 as Exhibit 2).

Under the plain and unambiguous language of HRS 338-13(a), the Department of Health

is required, to furnish to any applicant a certified copy of any certificate. Therefore, pursuant to

HRS 338-13(a), Plaintiff is entitled to a certified copy of the original Birth Certificate of

Virginia Sunahara, which is any certificate. [W]here no ambiguity appears, it has been

presumed conclusively that the clear and explicit terms of a statute express the legislative

intention. A plain and unambiguous statute is to be applied, and not interpreted, since such a

statute speaks for itself, . . . (Emphasis added). 73 Am Jur 2d STATUTES 194. [I]n interpreting a

statute, we give the words their common meaning, unless there is something in the statute

requiring a different interpretation. (Emphasis added).Iddings v. Mee-Lee, 82 Haw. 1, 7, 919

P.2d 263 (1996).

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The Department of Health is required to comply with the express terms of a statute. A

statute is to be taken, construed, and applied in the form enacted. . . the legislature must be

presumed to know the meaning of words, and to have used the words of a statute advisedly.

(Emphasis added). 73 Am Jur 2d STATUTES 196. [L]egislative enactments are presumptively

valid and should be interpreted in such a manner as to give them effect. State v. Mun Chung Tom,

69 Haw. 602, 752 P.2d 597 (1988) (Statutes must be read so as to give them effect).

The plain language of the statute, HRS 338-13(a) does not require any interpretation.

In order to justify construction by either an administrative agency or court, it must first appear

that construction is necessary. An unambiguous statute may not be supplemented or altered in the

guise of interpretation. Generally, inconvenience or hardships, if any, that result from following

the statute as written, must be relieved by legislation, and construction may not be substituted for

legislation. (Emphasis added). 2 Am Jur 2d ADMINISTRATIVE

LAW

78.A court may not depart from the literal construction of a statute unless it would produce an

absurd result and the literal construction. . . is clearly inconsistent with the purposes and policies

of the act.Richardson v. City & County of Honolulu, 76 Haw. 46, 54, 60, 868 P.2d 1193 (1994).

A literal construction of the statute would not produce an absurd result and it is not inconsistent

with the Department of Healths obligation to provide certified copies of vital records to

applicants. HRS 338-13(a), requires the Department of Health to furnish a certified copy of

any certificate, which includes original birth certificates. Pursuant to HRS 338-13(a), Plaintiff

is entitled to a certified copy of the original Birth Certificate of Virginia Sunahara, and Plaintiff

has stated claims for relief which precludes dismissal or summary judgment.

2. The Department of Health Has Not Complied with the Law by Providing aComputer Generated Abstract. The Department Cannot Rely on HRS

338-13 (c), Which Only Provides Authority as to the Method of Copying

Records, but Not Discretion as to the Records the Department Must Provide

Defendant State and the Department of Health have not complied with the requirements of

HRS 338-13(a) merely because a computer generated abstract was provided to the Plaintiff.

(See Abstract as Exhibit 1). Defendant State claims that, The Director (Department of Health)

has the authority to select and adopt the process of providing computer generated abstracts of vital

records. . . (Memorandum in Support, at pp. 4-5). The State relies on HRS 338-13(c), which

states, Copies may be made by photography, dry copy reproduction, typing, computer printout or

other process approved by the director of health. (Emphasis added).

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However, the State misinterprets this statutory provision because it merely provides the

Director with discretion to choose the method or process of producing copies, either by

photography, dry copy, typing or computer printout. Contrary to the States interpretation,

HRS 338-13(c) does not grant the Director any discretion or authority to disregard the

requirements of HRS 338-13(a) to provide a certified copy of any certificate. This section

only grants the Director the discretion and authority to approve the manner or process of making

copies. If the Legislature had intended to grant the Director the sole discretion of providing only a

computer generated abstract, the Legislature would have eliminated the requirement of

providing a certified copy of any certificate, or alternatively, the Legislature could have

expressly granted the Director with similar discretion or authority as in HRS 338-13(a), but the

Legislature has not done so.

In addition, HRS 338-13(c) cannot be construed as granting the Department of Health thesole discretion to provide a computer generated abstract, in lieu of a copy of a certified original

Birth Certificate. This would effectively nullify the requirement of HRS 338-13(a) of providing

a certified copy of any certificate.HOH Corp. v. Motor Vehicle Industry Licensing Bd, DCCA,

69 Haw. 135, 736 P.2d 1271 (1987) (The law has long been clear that agencies may not nullify

statutes).

It is also a general rule of construction in the interpretation of a statute, courts may not

take, strike, or read anything out of a statute, or delete, subtract, or omit anything. 73 Am Jur 2d

STATUTES 200. [I]t is a cardinal rule of statutory construction that significance and effect should,

if possible, . . . be accorded to every part of the act, including every section, paragraph, sentence or

clause, phrase, and word, phrase, sentence and word. (Emphasis added). 73 Am Jur 2d STATUTES

250.

When construing a statute, our foremost obligation is to ascertain and give effect to the

intention of the legislature which is to be obtained primarily from the language contained in the

statute itself. Moreover, it is well-settled that courts are bound to give effect to all parts of a

statute, and that no clause, sentence or word shall be construed as superfluous, void, or

insignificant if a construction can be legitimately found which will give force to and preserve all

words of the statute. (Emphasis added). State of Hawaii v. Magoon, 75 Haw. 164, 177, 858 P.2d

712 (1993);Hi Kai Inv. v. Aloha Futons, 84 Haw. 75, 929 P.2d 88 (1996) (The court, whenever

possible, interprets every word, clause and sentence of a statute to give them effect). The Court

must give effect to both HRS 338-13(a) which requires the Department of Health to provide a

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certified copy of any certificate, and HRS 338-13(c) which provides the Director only

discretion as to the method of copying records.

3. The Department of Health Does Not Have Any Discretion to Provide a

Computer Generated Abstract, In Lieu of a Certified Copy of an Original

Certificate

Although HRS 338-13(a) states the Department of Health is to, furnish to any applicant

a certified copy of any certificate, or the contents of any certificate, or any part thereof, this does

not grant the Department an option or discretion to provide a computer generated abstract

instead of a certified copy of Virginia Sunaharas original Birth Certificate. While the term or is

normally used a disjunctive, with a choice among two or more things, Hawaii law, HRS 1-18,

expressly states, Each of the terms or and and, has the meaning of the other or both.

(Emphasis added). Therefore, under HRS 1-18, the term or as used in HRS 338-13(a), is to

be interpreted as and.

In re City & County of Honolulu Corporation Counsel, 54 Haw. 356, 374, 507 P.2d 169

(1973), the Hawaii Supreme Court held, We are of the opinion that the disjunctive or in the

context as used in Section 20 actually imparts the meaning of the conjunctive and. The sense of

a word which harmonizes best with the whole context of the statute and promotes in the fullest

manner the apparent policy and objects of the legislature must be adopted. (Emphasis added).

Even if or is used as a disjunctive, this does not grant the Department of Health the sole

discretion or authority to decide the form of the document to provide to applicants. While, HRS

338-13(c) specifically grants the Director of the Department of Health, discretion to approve the

manner of copying vital records, it is significant that, such discretion is conspicuously absent in

HRS 338-13(a). Laws inpari materia, or upon the same subject matter, shall be construed with

reference to each other. HRS 1-16. State by Attorney General v. Kapahis Heirs, 50 Haw. 237,

437 P.2d 321 (1968) (In the interpretation of section of the statutes, other sections of the statute in

pari materia must be considered).

Under Hawaii law, where a statute with reference to one subject contains a given

provision, the omission of such provision from a similar statute concerning a related subject. . . is

significant to show that a different intention existed. (Emphasis added). State v. Rodgers, 68

Haw. 438, 718 P.2d 275 (1986).

While the Director of the Department of Health has authority to approve the manner of

copying vital records under HRS 338-13(c), there is no such discretion to determine the form of

the documents to provide under HRS 338-13(a). The Department of Healths lack of discretion

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or authority leads to the logical conclusion that the Legislature intended for the Department to

provide a certified copy of any certificate and this requirement is not met by merely providing a

computer generated abstract.

The obvious solution to the interpretation of HRS 338-13(a), is that it is the applicant

who can elect either a computer generated abstract or a certified copy of an original birth

certificate. The statute does not give the Department of Health any discretion to make the

decision for an applicant. The Court should find that the Department of Health does not have the

discretion or authority under HRS 338-13(a), to provide a computer generated abstract in lieu

of a certified copy of Virginia Sunaharas original Birth Certificate.

4. The Department of Health Is Not Entitled to Deference in its Interpretation

of HRS 338-13(a).

The Court is not required to give any deference to the Department of Healths

interpretation of HRS 338-13(a), because it does not require any specialized expertise and

interpretation of the law is a function of the courts. [C]ourts have held that deference should be

applied only where the agencys special expertise is relevant, . . when a statutory interpretation

presents a question of law, no particular deference is owed the agencys interpretation of the

applicable statute. (Emphasis added). 2 Am Jur 2d ADMINISTRATIVE LAW 85.Kaufman v. State

Dept. of Social & Rehabilitation Services, 811 P.2d 876 (Kan. 1991) (In reviewing questions of

law, the court may substitute its own judgment for that of the administrative agency).

InHaole v. State, 111 Haw. 144, 150, 140 P.3d 377 (2006), the Hawaii Supreme Court

held that an agencys interpretation and application of a statute is generally accorded judicial

deference. However, an interpretation by an agency of a statute it administers is not entitled to

deference if the interpretation is plainly erroneous and inconsistent with both the letter and intent

not the statutory mandate. City & County of Honolulu v. Ing, 100 Haw. 182, 58 P.3d 1229

(2002) (Judicial deference to administrative agencies does not apply when the agencys reading of

the statute contravene the legislatures manifest purpose).

In this case, the Legislatures manifest purpose requires the Department of Health to

provide a certified copy of any certificate to a qualified applicant. The Department of Health is

not entitled interpret HRS 338-13(a), as merely requiring it to provide a computer generated

abstract, because this interpretation is erroneous and it effectively nullifies HRS 338-13(a).

5. The Claim that the Computer Generated Abstract is to be Considered the

Same as the Original is Irrelevant

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Defendant State claims that Plaintiff is only entitled to computer generated abstract

because under HRS 338-13(b), it is considered the same as the original. HRS 338-13(b) states,

Copies of the contents of any certificate on file in the department, certified by the department

shall be considered for all purposes the same as the original, subject to the requirements of

sections 338-16, 338-17, and 338-18. (Emphasis added). However, the fact that a certified

computer generated abstract is functionally equivalent to the original document, does not

relieve the Department of Health of its statutory obligation under HRS 338-13(a) to provide a

certified copy of any certificate.

If the Legislature intended for a computer generated abstract to be a substitute for a

certified copy of any certificate, the statute would have stated so. Instead, the Legislature only

provides that copies of the contents like a certified computer generated abstract, is only a

functional equivalent and not a substitute for providing an original birth certificate.B. THE DEPARTMENT OF HEALTH MAY NOT PROMULGATE

REGULATIONS THAT CONTRAVENES THE LAW AND THE

DEPARTMENT CANNOT VIOLATE ITS OWN REGULATIONS WHICH ARE

CONSISTENT WITH THE STATUTE

Defendant State has submitted as the Department of Healths Public Health Regulations,

Chapter 8B (hereafter Regulation), Exhibit A, and cites Regulation 2.4B(2) that,

Abbreviated copies may be prepared by typing, by computer printout, or by any other process

approved by the Director. As discussed above as it relates to HRS 338-13(c), this merely refers

to the method or process of copying vital records, and does not grant the Department of Health

any discretion to provide a computer generated abstract in lieu of a certified copy of any

certificate, as required by HRS 338-13(a). The Court can take judicial notice of Regulation 8B.

Upon reasonable notice to adverse parties, a party may request that the court take, and the court

may take, judicial notice of. . .(2) all duly published regulations of federal and state agencies. . .

HAWAII RULESOF EVIDENCE, Rule 202(c).

The Department of Healths Rules and Regulations must conform and cannot conflict with

HRS 338-13(a). Administrative rules must conform to the laws enacted by the legislature. . . [a]

regulation may not enlarge, restrict, modify or contravene an existing statute, even with broad

rulemaking authority has been granted, and that administrative regulations in conflict with the

constitution or statutes are generally declared to be null or void. When a conflict exists between a

statute and a regulation, the regulation must be set aside to the extent of the conflict. (Emphasis

added). 2 Am Jur 2d ADMINISTRATIVE LAW 227.

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InPuana v. Sunn, 69 Haw. 187, 737 P.2d 867 (1987), the Hawaii Supreme Court held that,

The DSSHs authority, however, is limited to enacting rules which carry out and further purposes

of the legislation and do not enlarge, alter, or restrict the provisions of the act being administered.

See alsoIn re Doe Children, 73 Haw. 15, 19, 827 P.2d 1144 (1992) (Rules enacted by

administrative agency cannot contravene the statute the agency is implementing.)

InJacober v. Sunn, 6 Haw.App. 160, 167, 715 P.2d 813 (1986), the court held that an

agency, may not enact rules and regulations which enlarge, alter, or restrict the provisions of the

act being administered. (Emphasis added). It is axiomatic that an administrative rule cannot

contradict or conflict with the statute it attempts to implement.Hyatt Corp. v. Honolulu Liquor

Commission, 69 Haw. 238, 241, 738 P.2d 1205 (1987).

1. The Department of Healths Own Regulation Allows it to ProvideCertified Copies of Original Birth Certificates. The Department of Health

Appears to be Violating Its Own Regulations.

The Department of Health has promulgated Department of Healths Public Health

Regulations, Chapter 8B, Exhibit A to their pleading. The Regulation actually is consistent with

HRS 338-13(a), and expressly provides that the Department of Health shall provide to an

applicant, a certified copy of an original birth certificate. Regulation 2.5 states:

2.5 Eligibility for Copies of Birth Certificates

A. Standard Copy

A certified copy of the original birth certificate on file with the Department

of Health as described in paragraph 2.4(b)(1) may be issued to:

(1) The registrant, his descendents, his authorized agent or upon order

of a court of competent jurisdiction. . . . (Emphasis added). (See Excerpt of

Regulation, as Exhibit 3).

The Department of Healths own regulations authorizes the issuance of a certified original

birth certificate, rather than a computer generated abstract. It appears that the Departments

Regulation complies with the statutory requirements of HRS 338-13(a). However, the Director

and Department of Health have disregarded both the statute and their own regulation. Thomas v.

Dept. of Social and Health Services, 793 P.2d 466 (Wash.App. 1990) (An agencys interpretation

of its own rule remains subject to independent appellate review).

Under Hawaii law, the court interprets an agencys rules and regulation according to the

general rules of statutory construction. [T]he general principles of construction which applies to

statutes also apply to administrative rules. As in statutory construction, courts look first at an

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administrative rules language. If an administrative rules language is unambiguous and its literal

application is neither inconsistent with the policies of the statute the rule implements[,] nor

produces an absurd or unjust result, courts enforce the rules plain meaning. (Emphasis added). In

re Doe Children, 105 Haw. 38, 53, 93 P.3d 1145 (2004).

The plain and unambiguous language, of the Department of Healths Regulation,

paragraph 2.5 A is consistent with the HRS 338-13(a), requiring the Department to provide a

copy of any certificate. When a rule does not conflict with statutory and constitutional

requirements, courts will ascertain and effectuate the intent of the agency which promulgated the

rule. (Emphasis added). Williams v. Hawaii Medical Service Association, 71 Haw. 545, 549-50,

798 P.2d 442 (1990).

The Department of Health is not entitled to deference of interpreting its own Regulations

because its interpretation contradicts both the statute, HRS 338-13(a) and the Departmentsown Regulation 2.5 A. We grant deference in reviewing an administrative agencys interpretation

of its own rules unless a decision is clearly erroneous or inconsistent with the underlying

legislative purpose. (Emphasis added). Malama Mahaulepu v. Land Use Commission, 71 Haw.

332, 339, 790 P.2d 906 (1990).

[A] court construing a regulation will give substantial deference to the

administrative construction or interpretation by an agency of its own regulation so long as

it is reasonable, and not in conflict with the plain language of the statute. . . Nevertheless, it

is the court rather than the agency, which must ultimately determine the true construction

or interpretation, and court will not construe rules in a manner inconsistent with the

governing statute or the regulation itself. (Emphasis added). 2 Am Jur 2d ADMINISTRATIVE

LAW 240.

Although the Department of Healths Regulation 2.5 A is consistent with HRS 338-

13(a), the Department has chosen to violate its own regulation by only providing computer

generated abstracts instead of certified copies of original birth certificates. [O]nce

promulgated, the rules made by an agency to govern its activity cannot be violated or waived by

that agency. Agencies are bound by the rules they promulgate. . . and agencies cannot arbitrarily

disregard their rules. . . . 2 Am Jur 2d ADMINISTRATIVE LAW 237. Dyniewicz v. United States,

743 F.2d 484 (9th Cir. Haw. 1984) (Agencies are generally bound by regulations they promulgate,

procedural rules as well as substantive rules are binding).

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The Department of Healths Regulation 2.5 A, states that it will provide certified copies

of original birth certificates. However, the Department is not complying with its own Regulation,

and claims it only needs to provide a computer generated abstract to satisfy the requirements of

the statute. The Court should find that the Department of Health is violating the statute and its

own Regulation. Under both the statute and the Departments Regulation, Plaintiff is entitled to a

certified copy of the original Birth Certificate of Virginia Sunahara. The Court should find that

Plaintiff has sufficiently stated a claim for relief, which precludes dismissal of the Plaintiffs

Complaint.

2. Under the Department of Healths Regulation, Plaintiff is Entitled to Access to theOriginal Birth Certificate of Virginia Sunahara

The State claims that Plaintiff is not entitled to personally inspect and be present for

copying the original birth certificate because it would frustrate the government function of

preserving the safety and security of governmental records. (States Memorandum in Support, pp.

7-8). However, Plaintiff is not requesting unfettered access to all of the Departments vital

records, and his request is limited only to the original Birth Certificate of Virginia Sunahara. A

Department of Health employee can retrieve the document so no other record would be

compromised.

Plaintiff is entitled to access to the records under HRS 92F-11(d) which states in relevant

part, Each agency shall assure reasonable access to facilities for duplicating records. . . The

Department of Healths Regulation also provides for access to vital records.

2.1 Access to Vital Records

C. Individuals

Upon written request and proper identification, the state registrar or local

registrar of a registration district (county) may permit an individual to examine a

certificate for the purpose of verifying an entry or correcting an error; provided that

the individual is eligible to receive such information as described in Paragraph 2.5

through 2.9 herein. (Emphasis added). (See Excerpt of Regulation, as Exhibit 4).

As for security concerns, the Departments Regulation 2.1 G provides, . . . all persons

granted access to the vital records shall be afforded access under the supervision of a person

authorized by the Director of Health. (Emphasis added). (See Excerpt of Regulation, as Exhibit

5). Plaintiff is willing to comply with the Regulations, if the Department of Health will comply

with its own Regulations.

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P.2d 173 (1981). A Rule 12(b)(6) motion to dismiss. . . shall be treated as a Rule 56, HRCP,

motion for summary judgment when matters outside the pleadings are presented to and not

excluded by the court in making its decision on the motion. Rosa v. CWJ Contractors, Ltd., 4

Haw.App. 210, 214, 664 P.2d 745 (1983).

If the Court considers this motion as one for summary judgment, the Court should find that

Defendant State has failed to meet its burden. A party moving for summary judgment has the

burden of clearly establishing the lack of any triable issue of fact properly before the court, even if

the opposing party at trial would have the burden of proof on a particular issue. MOORES FEDERAL

PRACTICE 56.15[3]. In a motion for summary judgment, the movant must show the absence of a

material and triable issue of fact.Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir.

1987).

Under Hawaii law, if the evidence presented on the motion is subject to conflictinginterpretations, or reasonable men might differ as to its significance, summary judgment is

improper.Kajiya v. Board of Water Supply, 2 Haw.App. 221, 224, 629 P.2d 635 (1981). In

McKeague v. Talbert, 3 Haw.App. 646, 651, 658 P.2d 898 (1983), the court noted that, It is only

where it is perfectly clear that there are no issue in the case that a summary judgment is proper.

(Emphasis added) CitingPierce v. Ford Motor Company, 190 F.2d 910, 915 (4th Cir. 1951).

In this case, the Plaintiff has established a statutory right to obtain a certified copy of the

original Birth Certificate of Virginia Sunahara pursuant to HRS 338-13(a). The Department of

Healths own Regulation also provides for the issuance of, A certified copy of the original birth

certificate on file. . . . (Regulation 2.5 A, Exhibit A). Accordingly, if the Court considers matters

outside the record and treats this as a motion for summary judgment, the Court should find that

there are disputed issues of material fact and Defendant States motion should be denied.

E. COURTS DO NOT VIEW MOTIONS TO DISMISS FAVORABLY ANDSHOULD DENY SUCH MOTIONS IF THE PLAINTIFF CAN PROVE ANY

SET OF FACTS TO SUPPORT HIS CLAIM.

Alternatively, if the Court considers this as a HRCP, Rule 12(b)(6) motion, the Court

should nevertheless deny Defendant States motion to dismiss. A motion to dismiss under HRCP,

Rule 12(b)(6) is generally viewed by the courts with disfavor. A motion to dismiss for failure to

state a claim is viewed with disfavor and is rarely granted, unless it appears to a certainty that no

relief can be granted under any set of facts. . . . (Emphasis added). Giuliani v. Chuck, 1

Haw.App. 379, 620 P.2d 733 (1980). Similarly, in Midkiff v. Castle and Cooke, Inc., 45 Haw.

409, 414, 368 P.2d 887 (1962), the Hawaii Supreme Court held, In apprising the sufficiency of

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the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief, . . . (Emphasis added).

InRosa v. CWJ Contractors, Ltd., 4 Haw.App. 210, 214, 664 P.2d 745 (1983), the court

held, A Rule 12(b)(6), dismissal is warranted only if the claim is clearly without any merit and

this want of merit may consist of an absence of law to support a claim of the sort made, or of facts

sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the

claim. (Emphasis added).

The court inAu v. Au, 63 Haw. 210, 626 P.2d 173 (1981) also noted that in a motion to

dismiss, the court deems the allegations contained in the complaint as true. In considering the

sufficiency of the allegations in the complaint as against a Rule 12(b)(6) motion, the plaintiffs

description of what happened along with any conclusions that can reasonably be drawn therefromwill be accepted. (Emphasis added). Moore v. Allstate Insurance Co., 6 Haw.App 646, 650, 736

P.2d 73 (1987) citing5 Wright & Miller, FEDERAL PRACTICEAND PROCEDURE: CIVIL 1357. See also

61A Am Jur 2d PLEADINGS 231 (A motion to dismiss is not favored by the courts, and pleadings

alleged to state no cause of action or defense will be liberally construed in favor of the pleader).

In this case, Plaintiff has established that he has a statutory right under HRS 338-13(a) to

obtain a certified copy of the original Birth Certificate of Virginia Sunahara. Plaintiff Sunahara

has established the sufficiency of his claims of relief and Defendant State and the Department of

Health are not entitled to dismissal of Plaintiffs complaint under HRCP, Rule 12(b)(6).

III. CONCLUSION

Defendant State has filed this motion to dismiss pursuant to HRCP, Rule 12(b)(6),

claiming that Plaintiff Duncan Sunahara has failed to state a claim for which relief can be granted.

However, as discussed herein, Defendant State has misinterpreted the plain and unambiguous

language of the statute, HRS 338-13. The Court should find that HRS 338-13(a) requires the

Department of Health to provide Plaintiff a certified copy of the original Birth Certificate of his

deceased sister, Virginia Sunahara. The Court should also find that the Department cannot meet

its statutory requirement by merely providing a computer generated abstract. In addition, even if

the contents of such an abstract can be considered for all purposes, the same as the original, is

not dispositive and does not relieve the Department of its statutory duty to provide a certified

copy of any certificate.

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For the reasons stated, the Defendants motion to dismiss, or if considered as a motion for

summary judgment, should be denied.


GERALD H. KURASHIMAAttorney for Plaintiff

Duncan Sunahara

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TABLE OF AUTHORITIES

CASES PAGE

Au v. Au, 63 Haw. 210, 626 P.2d 173 (1981)........................................................................14, 16

City & County of Honolulu v. Ing, 100 Haw. 182, 58 P.3d 1229 (2002)..............................8

Dyniewicz v. United States, 743 F.2d 484 (9th

Cir. Haw. 1984)............................................12Giuliani v. Chuck, 1 Haw.App. 379, 620 P.2d 733 (1980)....................................................16

HOH Corp. v. Motor Vehicle Industry Licensing Bd, DCCA, 69 Haw. 135,736 P.2d 1271 (1987)........................................................................................................6

Haole v. State, 111 Haw. 144, 140 P.3d 377 (2006)..............................................................8

Hi Kai Inv. v. Aloha Futons, 84 Haw. 75, 929 P.2d 88 (1996)..............................................6

Hyatt Corp. v. Honolulu Liquor Commission, 69 Haw. 238,

738 P.2d 1205 (1987)........................................................................................................ 10

Iddings v. Mee-Lee, 82 Haw. 1, 919 P.2d 263 (1996)...........................................................4

In re Doe Children, 105 Haw. 38, 93 P.3d 1145 (2004)........................................................10, 11

In re City & County of Honolulu Corporation Counsel, 54 Haw. 356,

507 P.2d 169 (1973)..........................................................................................................7

Jacober v. Sunn, 6 Haw.App. 160, 715 P.2d 813 (1986).......................................................10

Kajiya v. Board of Water Supply, 2 Haw.App. 221, 629 P.2d 635 (1981)............................15

Kaufman v. State Dept. of Social & Rehabilitation Services, 811 P.2d 876(Kan. 1991).......................................................................................................................8

Maile Sky Court Co., Ltd. v. City & County of Honolulu, 85 Haw. 36,

936 P.2d 672 (1997)..........................................................................................................3

Malama Mahaulepu v. Land Use Commission, 71 Haw. 332,790 P.2d 906 (1990)..........................................................................................................12

Mathewson v. Aloha Airlines, Inc., 82 Haw. 57, 919 P.2d 969 (1996)..................................3

McKeague v. Talbert, 3 Haw.App. 646, 658 P.2d 898 (1983)..............................................15

Midkiff v. Castle and Cooke, Inc., 45 Haw. 409, 368 P.2d 887 (1962).................................16

Moore v. Allstate Insurance Co., 6 Haw.App 646, 736 P.2d 73 (1987)................................16

Pierce v. Ford Motor Company, 190 F.2d 910 (4th Cir. 1951)..............................................15

Pioneer Mill Co., Ltd. v. Dow, 90 Haw. 289, 978 P.2d 727 (1999)......................................14

Puana v. Sunn, 69 Haw. 187, 737 P.2d 867 (1987)...............................................................10

Reefshare, Ltd. v. Nagata, 70 Haw. 93, 762 P.2d 169 (1988)...............................................3

Richards v. Neilsen Freight Lines, 810 F.2d 898 (9th Cir. 1987)...........................................15

Richardson v. City & County of Honolulu, 76 Haw. 46, 868 P.2d 1193 (1994)...................5

Rosa v. CWJ Contractors, Ltd., 4 Haw.App. 210, 664 P.2d 745 (1983)...............................15, 16

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State by Attorney General v. Kapahis Heirs, 50 Haw. 237,

437 P.2d 321 (1968)..........................................................................................................7

State of Hawaii v. Magoon, 75 Haw. 164, 858 P.2d 712 (1993)...........................................6

State v. Mun Chung Tom, 69 Haw. 602, 752 P.2d 597 (1988)..............................................4

State v. Rodgers, 68 Haw. 438, 718 P.2d 275 (1986)............................................................7

Stop H-3 Association v. State of Hawaii, 68 Haw. 154, 706 P.2d 447 (1985)...................... 3

Thomas v. Dept. of Social and Health Services, 793 P.2d 466

(Wash.App. 1990).............................................................................................................11

United States v. Property in Name of Alexander Morio Toki,

779 F.Supp. 1272 (D. Haw. 1991)....................................................................................14

Williams v. Hawaii Medical Service Association, 71 Haw. 545,798 P.2d 442 (1990).......................................................................................................... 12

STATUTES PAGE

HRS 1-16............................................................................................................................7

HRS 1-18............................................................................................................................7

HRS 91-1 to 4, Hawaii Administrative Procedures Act (HAPA).....................................14

HRS 92F-11(d)....................................................................................................................2, 13

HRS 338-13....................................................................................................................2,passim

HRS 338-13(a)...............................................................................................................2,passim

HRS 338-13(b)....................................................................................................................9

HRS 338-13(c)....................................................................................................................5-9

RULES PAGE

HRCP Rule 12(b)...................................................................................................................14

HRCP Rule 12(b)(6)..............................................................................................................15-17

HRCP Rule 56........................................................................................................................15, 17

HRCP Rule 56(b)...................................................................................................................14

HAWAII RULESOF EVIDENCE, Rule 202(b)..................................................................................2

HAWAII RULESOF EVIDENCE, Rule 202(c)..................................................................................10

Department of Healths Public Health Regulations, Chapter 8B...................................9,passim

TREATISES PAGE

2 Am Jur 2d ADMINISTRATIVE LAW 78...................................................................................5

2 Am Jur 2d ADMINISTRATIVE LAW 85...................................................................................3, 8

2 Am Jur 2d ADMINISTRATIVE LAW 227.................................................................................10


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61A Am Jur 2d PLEADINGS 231............................................................................................16

73 Am Jur 2d STATUTES 194.................................................................................................4

73 Am Jur 2d STATUTES 196.................................................................................................4

73 Am Jur 2d STATUTES 200.................................................................................................6

73 Am Jur 2d STATUTES 250.................................................................................................6

MOORES FEDERAL PRACTICE 56.15[3]....................................................................................17

5 Wright & Miller, FEDERAL PRACTICEAND PROCEDURE: CIVIL 1357......................................16

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

i-iii

I. STATEMENT OF THE CASE

1

II. ARGUMENT 2

A. THE DEPARTMENT OF HEALTH IS REQUIRED UNDER HRS 338-13(A),TO PROVIDE A CERTIFIED COPY OF ANY CERTIFICATE. THE

DEPARTMENT HAS NOT MET ITS STATUTORY OBLIGATION BY

PROVIDING ONLY A COMPUTER GENERATED ABSTRACT2

1. Plaintiff is Entitled to a Certified Copy of Virginia Sunaharas Original

Birth Certificate Under the Plain and Unambiguous Language of HRS

338-13(a)..........................................................................................................................

2

2. The Department of Health Has Not Complied with the Law by Providing a

Computer Generated Abstract. The Department Cannot Rely on HRS 338-13 (c), Which Only Provides Authority as to the Method of Copying

Records, but Not Discretion as to the Records the Department Must Provide

..........................................................................................................................

53. The Department of Health Also Does Not Have Any Discretion to Provide a

Computer Generated Abstract, In Lieu of a Certified Copy of an Original

Certificate..........................................................................................................................

7

4. The Department of Health Is Not Entitled to Deference in its Interpretation

of HRS 338-13(a)..........................................................................................................................

8

5. The Claim that the Computer Generated Abstract is to be Considered theSame as the Original is Irrelevant..........................................................................................................................

9

B. THE DEPARTMENT OF HEALTH MAY NOT PROMULGATE

REGULATIONS THAT CONTRAVENES THE LAW AND THEDEPARTMENT CANNOT VIOLATE ITS OWN REGULATIONS WHICH ARE

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CONSISTENT WITH THE STATUTE

9

1. The Department of Healths Own Regulation Allows it to ProvideCertified Copies of Original Birth Certificates. The Department of Health

Appears to be Violating Its Own Regulations.

..........................................................................................................................10

2. Under the Department of Healths Regulation, Plaintiff is Entitled to Access

to the Original Birth Certificate of Virginia Sunahara

..........................................................................................................................

13

C. THE COURT SHOULD STRIKE AND DISREGARD COUNSELS

INADMISSIBLE TESTIMONY AND ARGUMENT REGARDING THE

DEPARTMENTS COMPLIANCE WITH THE HAWAII ADMINISTRATIVE

PROCEDURES ACT (HAPA)14

D. DEFENDANT STATE HAS SUPPLEMENTED ITS MOTION TO DISMISS

WITH MATTERS OUTSIDE THE PLEADINGS. THE COURT SHOULDCONSIDER THIS MOTION AS ONE FOR SUMMARY JUDGMENT..............14

E. COURTS DO NOT VIEW MOTIONS TO DISMISS FAVORABLY AND

SHOULD DENY SUCH MOTIONS IF THE PLAINTIFF CAN PROVE ANY

SET OF FACTS TO SUPPORT HIS CLAIM........................................................16

III. CONCLUSION...................................................................................................................17

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STATE OF HAWAII

DUNCAN SUNAHARA,

Plaintiff,

vs.

DEPARTMENT OF HEALTH, STATE OF

HAWAII, LORETTA FUDDY, IN HEROFFICIAL CAPACITY AS DIRECTOR OF

THE DEPARTMENT OF HEALTH,

STATE OF HAWAII; JOHN DOES 1-10;JANE DOES 1-10; DOE CORPORATIONS

1-10; DOE PARTNERSHIPS 1-10; AND

DOE GOVERNMENTAL ENTITIES 1-10,

Defendants.

___________________________________

))

)

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))

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)

CIVIL NO.: 12-1-0006-01 [RAN][DECLARATORY JUDGMENT]

DECLARATION OF DUNCANSUNAHARA

DECLARATION OF DUNCAN SUNAHARA

I, Duncan Sunahara, declare the following:

1. I am the Plaintiff in the above-entitled case, and I have personal knowledge of the

matters set forth herein. I am qualified to authenticate exhibits and I am competent to testify to the

matters stated herein.

2. I am the natural brother of Virginia Sunahara, deceased, and we share common

parents.3. I previously requested a certified copy of Virginia Sunaharas original birth

certificate from the State of Hawaii Department of Health. However, the Department of Health

provided me a computer generated abstract of Virginia Sunaharas birth certificate.

4. Exhibit 1 is a true and correct copy of the record provided by the Department of

Health.

5. In November 2011, I requested a certified copy of the original birth certificate of

Virginia Sunahara and also for an estimate of the costs to pay for a certified copy of the original

document. The Department of Health did not respond by

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providing me a certified copy of the original birth certificate, nor to my request for an estimate of

the costs to obtain the records, which I was willing to pay.

6. This civil action was commenced to compel the Department of Health to provide a

certified copy of the original birth certificate of my deceased sister, Virginia Sunahara.

7. I declare under penalty of law that the foregoing is true and correct.

DATED: Honolulu, Hawaii, _________________________________________.

___________________________________DUNCAN SUNAHARA

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STATE OF HAWAII

DUNCAN SUNAHARA,

Plaintiff,

vs.


HAWAII, LORETTA FUDDY, IN HER

OFFICIAL CAPACITY AS DIRECTOR OF

THE DEPARTMENT OF HEALTH, STATE

OF HAWAII; JOHN DOES 1-10; JANE DOES

1-10; DOE CORPORATIONS 1-10; DOE

PARTNERSHIPS 1-10; AND DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.

_______________________________________

)

)

)

)))

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)

CIVIL NO.: 12-1-0006-01 [RAN]


DECLARATION OF GERALD H. KURASHIMA

DECLARATION OF GERALD H. KURASHIMA

I, Gerald H. Kurashima, declare and states as follows:

1. I am an attorney at law, licensed to practice law in the State of Hawaii. I am

Plaintiff Duncan Sunaharas attorney and I have personal knowledge of the matters set forth

herein.

2. Exhibit 2 is a true and correct copy of HRS 338-13.

3. Exhibit 3 is a true and correct copy of an excerpt of the Department of Healths

Public Health Regulations, Chapter 8B, 2.5 A, Standard Copy, Exhibit A to the States

Memorandum in Support of its Motion to Dismiss.

4. Exhibit 4 is a true and correct copy of an excerpt of Public Health Regulations,

Chapter 8B, 2.1 C, Access to Vital Records, Individuals, Exhibit A to the States Memorandum.

5. Exhibit 5 is a true and correct copy of an excerpt of Public Health Regulations,

Chapter 8B, Regulation 2.1 G, Limitations, Exhibit A to the States Memorandum.

6. I declare under penalty of law that the foregoing is true and correct.

DATED: Honolulu, Hawaii, _________________________________________.

Gerald H. Kurashima


STATE OF HAWAII

DUNCAN SUNAHARA, ))

CIVIL NO.: 12-1-0006-01 [RAN][DECLARATORY JUDGMENT]

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Plaintiff,

vs.


HAWAII, LORETTA FUDDY, IN HEROFFICIAL CAPACITY AS DIRECTOR OF

THE DEPARTMENT OF HEALTH,

STATE OF HAWAII; JOHN DOES 1-10;JANE DOES 1-10; DOE CORPORATIONS

1-10; DOE PARTNERSHIPS 1-10; AND

DOE GOVERNMENTAL ENTITIES 1-10,

Defendants.___________________________________

)

)

))

)

)

))

))

)

)

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document will be served by hand delivery or

U.S. Mail, postage prepaid, upon the following, through counsel, upon the filing of this document:

David M. LOUIE

Attorney General, State of HawaiiHEIDI M. RIAN

JILL T. NAGAMINE

REBECCA E. QUINN.

Deputy Attorneys General465 South King Street, Room 200

Honolulu, Hawaii 96813

Attorneys for Department of Health


GERALD H. KURASHIMAAttorney for Plaintiff

Duncan Sunahara

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Sunahara v Fuddy - 2012-02-28 - Sunahara Memorandum in Opposition to Motion to Dismiss

Documents

Transcript of Sunahara v Fuddy - 2012-02-28 - Sunahara Memorandum in Opposition to Motion to Dismiss