Hawaii Attorney Schools Hawaii Department of Health
and Vexatious Litigant on Hawaii Law and Procedure
Sunahara v Fuddy(Hawaii-DOH) - Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss -
In the Circuit Court of the First Circuit State of Hawaii - 2/28/2012
Hearing set for March 8th, 2012 at 9:30 A.M. before Judge Rhonda Nishimura
Excerpts from local Hawaii attorney Gerald Kurashima's memorandum:
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS COMPLAINT, FILED ON JANUARY 3, 2012
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 Sunahara’s original Birth Certificate, and Plaintiff also is not entitled to “have access to that original.” (State’s 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 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 Sunahara’s 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.
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).
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 State’s “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 the sole 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 “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 Sunahara’s 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.”
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.”
THE COMPLETE MEMORANDUM BELOW AND HERE: http://www.scribd.com/doc/83139841/Sunahara-v-Fuddy-Hawaii-DOH-Plaintiff-s-Memorandum-in-Opposition-to-Defendant-s-Motion-to-Dismiss-Hawaii-First-Circuit-2-28-2012
ARTICLE II ELIGIBILITY FACTS HERE: http://www.art2superpac.com/issues.html