GERALD H.

KURASHIMA 5071-0 American Savings Bank Tower, Suite 1310 1001 Bishop Street Honolulu, Hawaii 96813 Phone: 545-5120 Attorney for Plaintiff Duncan Sunahara

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII DUNCAN SUNAHARA, Plaintiff, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS COMPLAINT, FILED ON JANUARY 3, 2012 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

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

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Defendants.

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DEPARTMENT OF HEALTH, STATE OF 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,

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CIVIL NO.: 12-1-0006-01 [RAN] [DECLARATORY JUDGMENT] PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS COMPLAINT, FILED ON JANUARY 3, 2012; MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS; EXHIBITS 1 TO 5; DECLARATION OF DUNCAN SUNAHARA; DECLARATION OF GERALD H. KURASHIMA; CERTIFICATE OF SERVICE HEARING DATE:MARCH 8, 2012 TIME: 9:30 A.M. JUDGE: RHONDA A. NISHIMURA

judgment under Rule 56, and Defendants motion should be denied. DATED: Honolulu, Hawaii,

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. GERALD H. KURASHIMA Attorney for Plaintiff Duncan Sunahara 2

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII ) ) Plaintiff, ) vs. ) ) DEPARTMENT OF HEALTH, STATE ) OF 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. ) __________________________________ ) ) DUNCAN SUNAHARA, I. STATEMENT OF THE CASE

MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS 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 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 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 Virginia Sunaharas birth certificate. (See Abstract of Birth Certificate as Exhibit 1). However, a

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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 RULES OF

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

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CIVIL NO.: 12-1-0006-01 [RAN] [DECLARATORY JUDGMENT] MEMORANDUM IN OPPOSITION TO DEFENDANTS TO MOTION TO DISMISS

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 Original Birth 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 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 LAW 85. claims that the Director of the Department of Health has the authority to choose the process by

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interpretation of the law rests with the courts. (Emphasis added). 2 Am Jur 2d ADMINISTRATIVE 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). 4

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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 also Reefshare, Ltd. v. Nagata, 70 Haw. 93, 99, 762 P.2d 169 (1988). (a) The statute in question, HRS 338-13 states,

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

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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 P.2d 263 (1996). 5

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

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

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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 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 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

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

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

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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 Legislature has not done so.

expressly granted the Director with similar discretion or authority as in HRS 338-13(a), but the In addition, HRS 338-13(c) cannot be construed as granting the Department of Health the sole discretion to provide a computer generated abstract, in lieu of a copy of a certified original 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. Birth Certificate. This would effectively nullify the requirement of HRS 338-13(a) of providing

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

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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 7

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

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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. be interpreted as and. (Emphasis added). Therefore, under HRS 1-18, the term or as used in HRS 338-13(a), is to 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). 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 in pari materia, or upon the same subject matter, shall be construed with 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 reference to each other. HRS 1-16. State by Attorney General v. Kapahis Heirs, 50 Haw. 237, Even if or is used as a disjunctive, this does not grant the Department of Health the sole

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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 While the Director of the Department of Health has authority to approve the manner of Haw. 438, 718 P.2d 275 (1986). 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 8

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or authority leads to the logical conclusion that the Legislature intended for the Department to computer generated abstract.

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

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 In Haole 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 (2002) (Judicial deference to administrative agencies does not apply when the agencys reading of the statute contravene the legislatures manifest purpose). not the statutory mandate. City & County of Honolulu v. Ing, 100 Haw. 182, 58 P.3d 1229

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

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

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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 certified copy of any certificate.

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

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 RULES OF EVIDENCE , Rule 202(c). The Department of Healths Rules and Regulations must conform and cannot conflict with

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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. 10

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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

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In Puana 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 also In 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.)

In Jacober 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 Commission, 69 Haw. 238, 241, 738 P.2d 1205 (1987). 1. contradict or conflict with the statute it attempts to implement. Hyatt Corp. v. Honolulu Liquor The Department of Healths Own Regulation Allows it to Provide Certified 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

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

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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. of its own rule remains subject to independent appellate review). Under Hawaii law, the court interprets an agencys rules and regulation according to the

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

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 11

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

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A certified copy of the original birth certificate on file with the Department The registrant, his descendents, his authorized agent or upon order

of Health as described in paragraph 2.4(b)(1) may be issued to: of a court of competent jurisdiction. . . . (Emphasis added). (See Excerpt of Regulation, as Exhibit 3).

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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 re Doe Children, 105 Haw. 38, 53, 93 P.3d 1145 (2004). produces an absurd or unjust result, courts enforce the rules plain meaning. (Emphasis added). In 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 Departments own Regulation 2.5 A. We grant deference in reviewing an administrative agencys interpretation 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. of its own rules unless a decision is clearly erroneous or inconsistent with the underlying

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

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

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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 the Original 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. 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 Department of Healths Regulation also provides for access to vital records. 2.1 Access to Vital Records C. Individuals

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

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

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

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

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

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

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C.

THE COURT SHOULD STRIKE AND DISREGARD COUNSELS INADMISSIBLE TESTIMONY AND ARGUMENT REGARDING THE DEPARTMENTS COMPLIANCE WITH THE HAWAII ADMINISTRATIVE PROCEDURES ACT (HAPA).

The Court should strike and disregard inadmissible statements made by the Defendant States counsel, regarding compliance with the notice requirements under the Hawaii Administrative Procedures Act (HAPA), HRS 91-1 to 4. A party making or opposing a

motion for summary judgment may only rely on facts which are before the court as provided by Rule 56, HRCP. . . Unverified statements of fact in counsels memorandum or representations made in oral argument cannot be considered in determining a motion for summary judgment. (Emphasis added). Au v. Au, 63 Haw. 210, 626 P.2d 173 (1981).

In Pioneer Mill Co., Ltd. v. Dow, 90 Haw. 289, 297, 978 P.2d 727 (1999), the court held that, The unverified statements of fact alleged in counsels memorandum, as well as counsels oral representations advanced at the hearing on Pioneers motion, cannot be the basis for the circuit courts award of summary judgment. . . Indeed, those facts alleged that were unverified or improperly verified were not properly before the circuit court in its determination. Similarly, in United States v. Property in Name of Alexander Morio Toki, 779 F.Supp. 1272 (D. Haw. 1991), the U.S. District Court held, Legal memoranda and oral argument are not evidence. . . . To the extent that Defendant States memorandum in support of its motion to dismiss presents inadmissible evidence, facts, and argument, the Court should strike and disregard such statements. D. DEFENDANT STATE HAS SUPPLEMENTED ITS MOTION TO DISMISS WITH MATTERS OUTSIDE THE PLEADINGS. THE COURT SHOULD CONSIDER THIS MOTION AS ONE FOR SUMMARY JUDGMENT.

Defendant States motion to dismiss is supplemented with Exhibit A, Public Health Regulations, Chapter 8B and an affidavit of counsel. If the Court considers appended material, the Defendants motion to dismiss should properly be considered as one for summary judgment pursuant to HRCP Rules 12(b) and 56(b). HRCP Rule 12(b) states, if, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, . . . Consideration of matters outside the pleadings transforms a motion seeking dismissal of a

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complaint into an HRCP Rule 56 motion for summary judgment. Au v. Au, 63 Haw. 210, 213, 626 14

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

excluded by the court in making its decision on the motion. Rosa v. CWJ Contractors, Ltd., 4 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 conflicting interpretations, or reasonable men might differ as to its significance, summary judgment is

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) Citing Pierce 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.

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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 15

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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.

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

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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). In Rosa 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 in Au 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 therefrom will be accepted. (Emphasis added). Moore v. Allstate Insurance Co., 6 Haw.App 646, 650, 736 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 P.2d 73 (1987) citing 5 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: CIVIL 1357. See also

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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. DATED: Honolulu, Hawaii, .

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GERALD H. KURASHIMA Attorney for Plaintiff Duncan Sunahara

TABLE OF AUTHORITIES CASES

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)............................................12 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

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

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 City & County of Honolulu Corporation Counsel, 54 Haw. 356, 507 P.2d 169 (1973)..........................................................................................................7

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

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

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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 18

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PAGE

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 HRS 1-16............................................................................................................................7 HRS 1-18............................................................................................................................7

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 HAWAII RULES OF EVIDENCE, Rule 202(b)..................................................................................2 HAWAII RULES OF EVIDENCE, Rule 202(c)..................................................................................10

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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 2 Am Jur 2d ADMINISTRATIVE LAW 237.................................................................................12

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

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

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2 Am Jur 2d ADMINISTRATIVE LAW 240.................................................................................12 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 PRACTICE AND PROCEDURE: CIVIL 1357......................................16

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TABLE OF CONTENTS TABLE OF AUTHORITIES i-iii I. II. STATEMENT OF THE CASE 1 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 ABSTRACT 2 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 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 .......................................................................................................................... 5 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 The Department of Health Is Not Entitled to Deference in its Interpretation of HRS 338-13(a) .......................................................................................................................... 8

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The Claim that the Computer Generated Abstract is to be Considered the Same as the Original is Irrelevant .......................................................................................................................... 9

THE DEPARTMENT OF HEALTH MAY NOT PROMULGATE REGULATIONS THAT CONTRAVENES THE LAW AND THE DEPARTMENT 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 Provide Certified Copies of Original Birth Certificates. The Department of Health Appears to be Violating Its Own Regulations. .......................................................................................................................... 10 Under the Department of Healths Regulation, Plaintiff is Entitled to Access to the Original Birth Certificate of Virginia Sunahara .......................................................................................................................... 13

2.

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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 SHOULD CONSIDER THIS MOTION AS ONE FOR SUMMARY JUDGMENT..............14 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

E.

III.

CONCLUSION...................................................................................................................17

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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII ) ) Plaintiff, ) vs. ) DEPARTMENT OF HEALTH, STATE OF ) ) 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. ) ___________________________________ ) DUNCAN SUNAHARA,

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. parents. 3. I am the natural brother of Virginia Sunahara, deceased, and we share common 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. Health. 4. 5. Exhibit 1 is a true and correct copy of the record provided by the Department of In November 2011, I requested a certified copy of the original birth certificate of

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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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CIVIL NO.: 12-1-0006-01 [RAN] [DECLARATORY JUDGMENT] DECLARATION OF DUNCAN SUNAHARA

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. 7. This civil action was commenced to compel the Department of Health to provide a I declare under penalty of law that the foregoing is true and correct.

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

DATED: Honolulu, Hawaii, _________________________________________.

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___________________________________ DUNCAN SUNAHARA

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII DUNCAN SUNAHARA,

) CIVIL NO.: 12-1-0006-01 [RAN] ) [DECLARATORY JUDGMENT] Plaintiff, ) vs. ) DECLARATION OF GERALD H. KURASHIMA ) DEPARTMENT OF HEALTH, STATE OF ) 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. ) _______________________________________ ) DECLARATION OF GERALD H. KURASHIMA

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

Plaintiff Duncan Sunaharas attorney and I have personal knowledge of the matters set forth herein. 2. 3. Exhibit 2 is a true and correct copy of HRS 338-13.

Public Health Regulations, Chapter 8B, 2.5 A, Standard Copy, Exhibit A to the States Memorandum in Support of its Motion to Dismiss. 4. 5. 6. Exhibit 4 is a true and correct copy of an excerpt of Public Health Regulations, Exhibit 5 is a true and correct copy of an excerpt of Public Health Regulations, I declare under penalty of law that the foregoing is true and correct. Chapter 8B, 2.1 C, Access to Vital Records, Individuals, Exhibit A to the States Memorandum. Chapter 8B, Regulation 2.1 G, Limitations, Exhibit A to the States Memorandum. DATED: Honolulu, Hawaii, _________________________________________. Gerald H. Kurashima IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII ) CIVIL NO.: 12-1-0006-01 [RAN] ) [DECLARATORY JUDGMENT] 25

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DUNCAN SUNAHARA,

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

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

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) ) CERTIFICATE OF SERVICE vs. ) DEPARTMENT OF HEALTH, STATE OF ) ) 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. ___________________________________ Plaintiff, 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 Hawaii HEIDI M. RIAN JILL T. NAGAMINE REBECCA E. QUINN. Deputy Attorneys General 465 South King Street, Room 200 Honolulu, Hawaii 96813 Attorneys for Department of Health

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DATED: Honolulu, Hawaii,

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. GERALD H. KURASHIMA Attorney for Plaintiff Duncan Sunahara 26

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