Sunahara v. HI DOH - 2012-03-05 - Defendant Memorandum to Plaintiff Reply to Motion to Dismiss

8/2/2019 Sunahara v. HI DOH - 2012-03-05 - Defendant Memorandum to Plaintiff Reply to Motion to Dismiss

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DAVID M. LOUIE

Attorney General of Hawaii

2162

HEIDIM. RIAN 3473

JILL T. NAGAMINE 3513

REBECCA E. QUINN 8663Deputy Attorneys General

465 South King Street, Room 200

Honolulu, Hawaii 96813

Telephone: (808) 587-3050

Facsimile: (808) 587-3077

Attorneys for Defendants

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FILED

2 0 1 2 M A R - 5 P H 2 : 3 t

S. T A M A N A H AC l r p , , ~

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAI'I

DUNCAN SUNAHARA, )

)

Plaintiff, )

)

vs. )

)

DEPARTMENT OF HEALTH, STATE )

OF HAWAIl; LORETTA FUDDY, IN )

HER OFFICIAL CAPACITY AS )

DIRECTOR OF THE DEPARTMENT )OF HEALTH, STATE OF HAW AIl; )JOHN DOES 1-10; JANE DOES 1-10; )

DOE CORPORATIONS 1-10; DOE )

PARTNERSHIPS 1-10; AND DOE )

GOVERNMENTAL ENTITIES 1-10, )

)

Defendants. )

------------------------)

CIVIL NO. 12-1-0006-01 RAN

(DECLARATORY JUDGMENT)

DEFENDANTS' MEMORANDUM IN

REPLY TO PLAINTIFF'S

MEMORANDUM IN OPPOSITION TO

DEFENDANTS' MOTION TO DISMISS

COMPLAINT, FILED ON JANUARY 3,

2012; CERTIFICATE OF SERVICE

HEARING

DATE: March 8, 2012

TIME: 9:30

JUDGE: Hon. Rhonda A. Nishimura

DEFENDANT'S MEMORANDUM IN REPLY TO

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO

DEFENDANTS' MOTION TO DISMISS COMPLAINT, FILED ON JANUARY 3, 2012

The Department of Health, State of Hawaii ("department") and Loretta Fuddy, in her

official capacity as Director of the Department of Health, State of Hawaii ("Director" and

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together with the "department", "Defendants") by and through their attorneys, David M. Louie,

Attorney General, and Heidi M. Rian, Jill T. Nagamine, and Rebecca E. Quinn, Deputy

Attorneys General, submit this memorandum in reply to Plaintiffs opposition to Defendants'

motion to dismiss.

I. INTRODUCTION

Defendants filed their motion to dismiss asserting that Plaintiff s Complaint, filed on

January 3,2012 ("complaint") should be dismissed for Plaintiff's failure to state a claim upon

which relief can be granted.

Plaintiffhas filed his Memorandum in Opposition to Defendants' Motion to Dismiss

Complaint, Filed on January 3,2012 ("Memorandum") arguing that the Defendants' motion to

dismiss be denied. Plaintiffs memorandum does not provide any legal basis to allow this

Honorable Court to deny Defendants' motion to dismiss.

II. DISCUSSION

A. Hawaii Revised Statutes §338-13 does not require that the Department

furnish Plaintiff with a certified copy of the original Birth Certificate ofVirginia Sunahara.

Plaintiffs reply begins with a discussion of the role of the court regarding statutory

construction because his primary argument is that Defendants have not properly interpreted

Hawaii Revised Statutes ("HRS") §§338-13 and 338-18, thus it is up to the Court to provide a

proper interpretation. Plaintiff focuses on HRS §338-13(a) which provides:

(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.

452724_1.DOC 2





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(1961). The word "or" "usually connects words or phrases of different meanings, permitting a

choice of either." Id.

Plaintiff relies on the case of In re City & County of Honolulu Corporation Counsel, 54

Haw. 356,374,507 P.2d 169 (1973), where the Hawaii Supreme Court held that the word "or,"

as used in a statute dealing with two methods of valuation for two classes of property, actually

imparted the meaning of "and." However, the Court issued its ruling after stating that "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." Id. at p. 374, 178.

The Court deferred to the Public Utilities Commission's ("PUC") statutory construction and

found that the PUC's interpretation of "or" as "and" and its determination that there were two

methods of valuation for two classes of property was proper because it was warranted by the

record and reasonable. Id.

Here, the Department's statutory interpretation of section 313-13, HRS, and Chapter 8B,

Vital Statistics Registration and Records, of the State Public Health Regulations is also

warranted by the record and reasonable. HRS §338-13 establishes the Director's authority to

choose the process by which copies of vital records are made. The Director has adopted the

policy of printing and certifying abbreviated forms of certificates and it is clearly within the

authority of the Director. The regulations are consistent with HRS §338-13 given that Public

Health Regulations Chapter 8B, Regulation 2.4 B.(2) provides that "Abbreviated copies may be

prepared by typing, by computer printout, or by any other process approved by the Director." In

addition, Public Health Regulations Chapter 8B, Regulation 2.5 B.(1) allows the Defendants to

provide an abbreviated copy to any person authorized to receive a certified copy of an original

birth certificate. There are no circumstances in this case that require Defendants to interpret "or"

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as "and" and the case law supports Defendants' position that such interpretation is not mandatory

as Plaintiff suggests.

c. HRS §338-13 establishes the Director's authority to choose the process by

which copiesof vital records are made.

Plaintiff contends that while HRS §338-13(c) gives the Director discretion to approve the

manner of copying vital records, that same discretion is absent from HRS §338-13(a). Plaintiff

argues that under HRS §338-13(a), the Director has no discretion to chose the form of the

document to provide to applicants. However, Plaintiff's argument is without merit because HRS

§338-13(a) plainly gives the Director the option of choosing the form of the document to

provide.

(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.

Section 338-13, HRS (emphasis added).

D. The Department should be accorded judicial deference.

Plaintiff concedes that an agency's interpretation and application of a statute is generally

accorded judicial deference. Memorandum at p. 8, Haole v. State, 111 Haw. 144, 150, 140 P.3d

377 (2006). He adds that the agency is not entitled to deference if the "interpretation is plainly

erroneous and inconsistent with both the letter and intent of the statutory mandate." [d. He then

argues that the Department should not be accorded judicial deference because its interpretation

that it may provide a computer generated abstract is erroneous and contrary to the legislature's

manifest purpose that requires that Defendants provide a certified copy of any certificate. Here,

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again, Plaintiff selectively reads portions of HRS §338-13 and fails to read the statute as a whole.

A reading of the statute as a whole plainly reveals that the policy of printing and certifying

abbreviated forms of certificates is within the authority of the Director and consistent with

statutory mandate. The Department's interpretation and application of section 338-13, HRS is

not erroneous and the Department should be accorded judicial deference.

E. TheDepartmenthasnot misinterpretedits regulations.

Plaintiff incorrectly argues that Defendants have misinterpreted the regulations contained

in Chapter 8B, Vital Statistics Registration and Records, of the State Public Health Regulations

(the "Regulations"). Plaintiff contends that regulation 2.5.A. is consistent with HRS §338-13(a),

HRS, because both require that Defendants furnish a certified copy of Virginia Sunahara's

original birth certificate. Section 2.5.A.(1) provides:

A. Standard Copy

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

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

(1) The registrant, his descendants, his authorized agent, or upon order of a court

of competent jurisdiction.

Plaintiff states that this indicates that the Department is required to fulfill a valid birth certificate

request with a certified copy of the original birth certificate on file with the Department, instead

of providing a computer generated abstract of the birth certificate. Plaintiff once again fails to

read HRS §338-13 and the regulations in their entirety because he notably omits mentioning

section 2.5.B.(1) which provides:

B. Abbreviated Copy

(1) A certified copy may be issued to any person authorized to receive a standard

certified copy.

Section 2.5.B.(1) is consistent with HRS §338-13 as it provides that an abbreviated copy may be

issued in lieu of the standard certified copy. Here again, Plaintiff selectively chooses the

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portions of the statute and the regulations that appear to support his position, and continually

omits those portions that are contrary and support Defendants' interpretation ofHRS §338-13

and the regulations.

F. Nothing in Chapter 92F allowsPlaintiff to have accessto the original

birth certificate ofVirginia Sunahara.

Plaintiff claims that he is entitled to access his sister's fifty year old birth certificate based

on section 92F-11(d). Once again he is being selective in his reading of the law. Section 92F-

11(a) makes explicit that agencies' disclosure responsibilities do not extend to those government

records to which access is restricted or closed by law. Further, as stated in Defendant's Motion

to Dismiss, section 92F-21 allows access to personal records to only those individuals to whom

they pertain and neither Plaintiff nor his representatives meet that requirement. Nothing in the

Uniform Information Practices Act (VIP A) requires Defendants to disclose the certified copy of

the original fifty year old birth certificate requested by Plaintiff, and nothing in VIPA allows

Plaintiff or his representatives to access the actual original fifty year old record of Virginia

Sunahara's birth.

G. Defendants' Exhibit A should not be stricken.

Plaintiffs final argument centers on Exhibit A, Chapter 8B, Vital Statistics Registration

and Records, of the State Public Health Regulations which is attached to Defendants' Motion to

Dismiss and was provided for the Court's convenience. Plaintiff requests that it be stricken

because it is inadmissible testimony. The regulations contained in Exhibit A are a matter of

public record and may be found through legal research. Exhibit A is not testimony, but rather

the law applicable to this case given Plaintiff s various allegations. Plaintiff s description of

Exhibit A is inaccurate and his request to strike the exhibit should be denied.

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III. CONCLUSION

For all the reasons stated in Defendants' motion to dismiss and for the reasons stated

herein, Defendants respectfully request that this Honorable Court grant their motion to dismiss

Plaintiff s complaint.

DATED: Honolulu, Hawai'i, March 5, 2012.

DAVID M. LOUIE

Attorney General

State of Hawaii

~a_j}~IDIM. RIAN

J L T. NAGAMINE

REBECCA E. QUINN

Deputy Attorneys General

Attorneys for Defendants

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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OFHAWArI

DUNCAN SUNAHARA, )

)Plaintiff, )

)

vs. )

)

DEPARTMENT OF HEALTH, STATE )

OF HAWAII; LORETTAFUDDY, 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. )

-------------------------)

CIVIL NO. 12-1-0006-01 RAN

(DECLARATORY JUDGMENT)

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the date indicated below, a true and correct copy

of the foregoing document was served on the following at his last known address via U.S. mail,

postage prepaid:

GERALD H. KURASHIMA, ESQ.

American Savings Bank Tower, Suite 1310

1001 Bishop Street

Honolulu, Hawaii 96813

Attorney for Plaintiff

DATED: Honolulu, Hawaii, March 5, 2012.

4S2724_I.DOC

u.:1~T. NAGAMINE

# i l C C A E. Q r n N NDeputy Attorneys General

Attorneys for Defendant*

Documents

Sunahara v. HI DOH - 2012-03-05 - Defendant Memorandum to Plaintiff Reply to Motion to Dismiss