Dr. Leonard G. Horowitz co-authored this legal challenge to the state's TB skin testing program with attorney Gary C. Zamber. Dr. Horowitz is an internationally known authority in public health and emerging diseases. One of his three national best-sellers, Emerging Viruses: AIDS & Ebola—Nature, Accident or Intentional? is credited by federal health officials as being among the most persuasive vaccine risk awareness texts in America. Dr. Horowitz lives with his wife and three unvaccinated children on the Big Island of Hawaii. His official website is www.drlenhorowitz.com.

ALENA N. HOROWITZ, a minor child; LEONARD G. HOROWITZ, Guardian Ad Litem for the minor child, ALENA N. HOROWITZ,               Plaintiffs           vs. STATE OF HAWAII, DEPARTMENT OF HEALTH, and JOLANDA ROSARIO, SANDY UEMURA, and JUDITH AKAMINI, in their official capacities and as individual persons; STATE OF HAWAII, DEPARTMENT OF EDUCATION, HILO HIGH SCHOOL, and DOE DEFENDANTS 1-100,               Defendants.

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Civil No.                    (Hilo) (Other Non-Vehicle Tort)   COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES; EXHIBITS “A-C”; NOTICE OF COMPLAINT AND CERTIFICATE OF SERVICE; SUMMONS

1. Plaintiff ALENA N. HOROWITZ, is a minor child born on June 1, 1992, and is a resident of the County and State of Hawaii whose address is 490 Kukuau Street, Hilo, HI 96720.

1. Plaintiff LEONARD G. HOROWITZ, Guardian Ad Litem of the minor child ALENA N. HOROWITZ is the father of the minor child and is a resident of the County and State of Hawaii, whose address is 490 Kukuau Street, Hilo, HI 96720.

1. At all relevant times hereto Defendant STATE OF HAWAII, DEPARTMENT OF PUBLIC HEALTH, is and continues to be a governmental entity.

1. Employee JUDITH AKAMINI of the Department of Health, is a Supervising Nurse officiating as Director of the Tuberculosis Control Program on the Big Island of Hawaii in Hilo, personal address currently unknown to Plaintiff, is being sued in her official and personal capacity.

1. Employee SANDY UEMURA of the Department of Health, is a Nurse assistant to the Director of the Tuberculosis Control Program on the Big Island of Hawaii in Hilo, personal address currently unknown to Plaintiff, is being sued in her official and personal capacity.

1. Employee JOLANDA ROSARIO of the Department of Health, is a School Nurse at Hilo High School acting as assistant to the Director of the Tuberculosis Control Program on the Big Island of Hawaii in Hilo, personal address currently unknown to Plaintiff, is being sued in her official and personal capacity.

6.   At all relevant times hereto Defendant DEPARTMENT OF  EDUCATION, HILO HIGH SCHOOL is and continues to be a governmental entity.

7.    DOE Defendants 1-100 are sued herein under fictitious names for the reason that their true names and identities are presently unknown to the Plaintiffs, except that they are connected in some manner with the named Defendant and/or were the agent, servants, employees, employers, representatives, co-ventures, associates, vendors, suppliers, manufacturers, subcontractors or contractors and/or owners, lessees, assignees, licensees, designees, and engineers of the named Defendant and/or in some manner presently unknown to the Plaintiffs engaged in activities alleged herein and/or were in some manner responsible for the injuries or damages to Plaintiffs and/or conducted some activity in a negligent,  dangerous, or unlawful manner; which negligent, dangerous, or unlawful conduct was a proximate cause of injuries or damages to Plaintiffs and/or were in some manner related to the named Defendant and Plaintiffs pray for leave to insert herein their true names, identities, capacities, activities and/or responsibilities when the same are ascertained.
 
8.  Plaintiffs and their counsel have made a diligent and good faith effect to ascertain the full names and identities of all potential Defendants herein by examining all documents available to them in this manner.

FACTUAL ALLEGATIONS

9.  On September 1, 2006, Plaintiff Alena N. Horowitz was expelled from Hilo High School where she is enrolled as a student.  No expulsion papers nor appeal rights were provided to Plaintiffs though Plaintiffs requested the same.  The only reason given for expulsion was that the minor Plaintiff had not provided a Tb skin test that is contrary to her religious exemption.

10.  Plaintiffs hold bona fide religious beliefs and are members or adherents of an established church whose religious beliefs and tenents are not in accordance with requirements for the Tb skin test medical examination / immunization procedures.

11.  On or about July 27, 2006, and again on or about September 5, 2006, Plaintiffs provided Hilo High School administrators a signed religious waver request/demand [Exhibit “A”].

12. On or about June, 2006 Plaintiffs submitted a letter, from a licensed physician, that the minor Plaintiff is “TB free,” yet Hilo High School at the direction of the Department of Health and other state agents did refuse admission to school [Exhibit “B”].

13.  The Hawai’i Revised Statutes, as amended, provide variously for the right to religious exemption to medical examinations and immunizations as follows:
     a)  HRS §321-11(22) provides for allowance of religious exemption to medical examinations and immunizations such that “[n]o child shall be subjected to medical examination ... or immunization, whose parent or guardian objects in writing thereto on grounds that the requirements are not in accordance with the religious tenets of an established church of which the parent or guardian is a member or adherent...” [EXHIBIT “C”];
     b)  HRS §302A-1156 provides generally for allowance of religious exemption to immunization “[i]f any parent, custodian, guardian, or any other person in loco parentis to a child objects to immunization in writing on grounds that the immunization conflicts with that person’s bona fide religious tenets and practices.” [EXHIBIT “C”];
     c)  HRS §302A-1158 provides additional support for the fact that a religious exemption exists to the Tb skin test as an indigent “child immunized or tested for tuberculosis, and who have not been exempted under section 302A-1156” is afforded immunization and testing by public funds [EXHIBIT “C”];
     c)  HRS §325-34 additionally provides for allowance of religious exemption to immunization with language mirroring that of HRS §321-11(22) [EXHIBIT “C”];
     d)  HAR §157-5(b) of the Department of Health Administrative Rules provides allowance for religious exemption from immunizations.  [EXHIBIT “C”]

14.  Notwithstanding the fact that Plaintiffs have submitted documentation of religious exemption in accordance with the aforementioned provisions of the Hawai’i Revised Statutes and administrative regulations, and though a letter from a physician that the student is “TB free,” [EXHIBIT B], was provided to Hilo High School, at the direction of the Department of Health and other state employees, servants or agents, the same Defendants did refuse admission to school based upon the arbitrary and capricious position that a TB skin test is required without regard for the minor Plaintiff’s religious exemption.

15.  The Constitution of the State of Hawai’i provides Plaintiffs with a number of fundamental rights as follows:
     a)  Preamble; provides the “right to control our destiny, to nuture the integrity of our people and culture and to preserve the quality of life that we desire.”
     b)  Article I, Bill of Rights, Section 2, provides rights of individuals, including liberty interests;
     c)  Article I, Bill of Rights, Section 4 provides for freedom of religion;
     d)  Article I, Bill of Rights, Section 5 provides for due process and equal protection of the laws and states in relevant part that “[n]o person shall be deprived of ... liberty ... without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person’s civil rights or be discriminated against in the exercise thereof because of ... religion ... or ancestry.”
     e)  Article I, Bill of Rights, Section 7, provides “[t]he right of the people to be secure in their persons ... against unreasonable searches ... and invasions of privacy ...”.

16.  The actions or omissions of Defendants have had the effect of violating the rights aforementioned as guaranteed by the Constitution of the State of Hawai’i.

17.  The United States Constitution, Amendment I, IV, V, IX and XIV, as made applicable to the State of Hawai’i and the citizens therein, as well as the Right to Privacy in the Constitution of the State of Hawai’i provides Plaintiffs with certain fundamental rights to their religious beliefs as well as guaranteed privacy and liberty interests which can only be infringed where there is a compelling state interest and the least restrictive means utilized to accomplish the ends. 

18.  The actions or omissions of Defendants have had the effect of violating the rights aforementioned as guaranteed by the Constitution of the United States of America and as made applicable to the State of Hawai’i and the citizens herein by the U.S. Const. Amendment XIV. 

19.  The state may have a compelling state interest in promoting public health though there neither exists a compelling state interest to deny religious exemption to Tb skin test nor have least restrictive means been employed to accomplish state interests.

20.  The Department of Health is required to administer the immunization and tuberculin test requirements by statutory mandate pursuant to HRS §302A-1163 which therein refers to include administration of the religious exemption found at HRS §302A-1156.

21.  The Department of Health, in concert with all Defendants, has refused to recognize and account administratively for the religious exemption that is guaranteed to Plaintiffs.

22.  As a result of the actions and omissions of Defendants, and each of them, Plaintiffs statutory and constitutional rights to religious exemption from the immunization/examination laws of general applicability have been violated.

23.  Plaintiffs have, as such, suffered financial, mental and emotional stress and harm as well as other non-economic burdens that have been continuing.
 
24.  Plaintiff Alena N. Horowitz has been forced from school, ostracized, and not permitted to return unless she were to submit to an invasive medical procedure that is contrary to Plaintiffs bona fide and valid religious belief and practice and contrary to the established church tenant of which they adhere.

25.  Defendants, and each of them, therefore, have continued to violate the fundamental rights of Plaintiffs based on the arbitrary and capricious actions of these Defendants.

26.  Plaintiffs have filed, simultaneously with this Complaint, a Motion for Temporary Restraining Order, Preliminary Injunction and Declaratory Relief; Memorandum in Support of Motion; Declaration of Gary C. Zamber; Declaration of Leonard G. Horowitz; Declaration of Alena N. Horowitz which are incorporated by reference herein without the necessity of restating the same.

COUNT ONE
INJUNCTIVE RELIEF AGAINST DEFENDANTS

 

27.  Plaintiff re-alleges the allegations contained in paragraphs 1 through 24 above and incorporates the same by reference.

28.  An actual dispute exists between Plaintiffs and Defendants Hilo High School concerning matters set forth above.

29.  By reason of said dispute, Plaintiffs are entitled to a preliminary injunction enjoining State of Hawaii, Department of Health, State of Hawaii Department of Education, and Hilo High School, and each of them, and their agents, servants, to desist and refrain from denying admission of Alena N. Horowitz to Hilo High School classroom and extracurricular activities during the pendency of this action.

30.  After a final hearing, State of Hawaii, Department of Health, State of Hawaii Department of Education, and Hilo High School, and each of them, and their agents, servants, and employees to desist and refrain from denying admission of Alena N. Horowitz to Hilo High School classroom and extracurricular activities.

31.  As a direct and proximate result of Defendants’ violations, Plaintiffs have suffered and continue to suffer immediate and irreparable injury, loss, or damage is the result at present and will continue to the applicant before the adverse party or that party's attorney can be heard in opposition including, but not limited to, the following:

a) Alena N. Horowitz is being wrongfully excluded from Hilo High School classes and extracurricular activities by mandate of the principal who based decision upon Department of Health Directive.
b) The right to public education and religious bona fide belief rights of Alena N. Horowitz are currently being violated, and unless or until a restraining order and injunctive relief is granted, and the violations would otherwise continue if left unchecked.
c) Alena N. Horowitz is being subjected to stigmatization and radicalization as well as deprivation of education, socialization, instruction, religious freedom as applied to educational enrollment, and a host of other rights as guaranteed by the Constitutions of the State of Hawai’i and the United States. 
d) Alena N. Horowitz has additional burden of work assignments and loss of instruction regarding these assignments as long as she is forced to remain outside of school.
e) Alena N. Horowitz is a member of the cross-country team and is prevented from partaking in the running events by order of the school administration.
f) Alena N. Horowitz is subject to psychological and emotional distress as a result of the actions and inactions of Defendants that are the subject of this application.

32.  These violations constitute  immediate and irreparable injury, loss or damage to Plaintiffs, with an additional said injury, loss or damage accruing each day these violations continue.   

33.  It appears that there is an inadequate remedy at law as monetary damages would not suffice to cover the injury and loss or damage to plaintiff as the education and extracurricular opportunities to Plaintiff Alena N. Horowitz would be forever lost and immeasurable by monetary damages.  It is questionable as to the extent monetary damages would be available given sovereign immunity issues.

34.  Plaintiffs have a strong likelihood of success on the merits.

35.  It is in the best interests of justice that a preliminary injunction such that the status quo ante the violations of rights be preserved subject to a full hearing on the matter, that is, to allow Alena N. Horowitz the right to attend school and extracurricular activities and that a permanent injunction be issued upon a full hearing of the matter.

 

COUNT TWO

(GOOD FAITH AND FAIR DEALING AGAINST DOE, DOH and AG)

36.  Plaintiff realleges the allegations contained in paragraphs 1 through 33 above and incorporates the same by reference.

37.  Plaintiffs have in good faith attempted to remedy the situation and have exhausted their administrative remedies as a circuitous relationship between the Department of Education, Department of Health, and the Office of the Attorney General appears as each is taking recommendation from the other to reach the same unlawful result.

38.  Plaintiffs owe a duty of good faith and fair dealing to the citizens of the State of Hawai’i generally and to Alena N. Horowitz specifically in these matters.

39.  Despite numerous efforts to inform the Defendants of the law that exists in the State of Hawaii requiring recognition and respect of the religious exemption rights of Alena N. Horowitz, Defendants have and continue to violate these and other rights in a manner inconsistent with good faith and fair dealing. 

COUNT THREE

(BREACH OF DUTIES AGAINST HILO HIGH SCHOOL)

40.  Plaintiff realleges the allegations contained in paragraphs 1 through 37 above and incorporates the same by reference.

41.  Hilo High School has a duty under HRS §321-11(22), HRS §302A-1156, HRS §325-34, and HAR §157-5(b), re: religious exemptions, and other applicable laws to act reasonably and to exercise due care in performing responsibilities to allow admission of ALENA N. HOROWITZ, a minor child.

42.  On or about June, 2006 Plaintiffs submitted a letter, from a licensed physician, that the minor Plaintiff is “TB free,” yet Hilo High School at the direction of the Department of Health and other state agents did refuse admission to school [Exhibit “B”].

43.  On or about the 27th of July and then again on or about the 5th of September, when informed by Hilo High School that their religious exemption statement could not be located, Plaintiffs submitted Request/Demand for Exemption from Immunization & “Tb Clearance” on Religious Grounds [Exhibit A].
 
44.  Notwithstanding the documents filed with the school, the school has violated its duty to respect the Plaintiff’s religious exemption causing hardship to Plaintiffs and damages as determined by this Honorable Court.

COUNT FOUR
VIOLATION OF CIVIL RIGHTS AND SUBSTANTIVE DUE PROCESS
45. Plaintiff re-alleges the allegations contained in paragraphs 1 through 42 above and incorporates the same by reference.

46.  Plaintiffs have a number of statutory and Constitutional (state and federal) civil rights that have been violated by Defendants, including but not limited to rights of religious freedom, speech and association, education, equal protection, liberty interests, privacy including essential bodily integrity, rights preventing unreasonable searches, seizures and invasions of privacy. 

47.  Plaintiffs have a fundamental right to have honored their religious exemption from Tb skin testing laws as pursuant to HRS §302A-1156, HRS §321-11(22), HRS §325-34, HAR §157-5(b), the Constitution of the State of Hawaii and the Constitution of the United States of America. 

48.  Defendants violated the civil rights, including but not limited to rights to religious freedom, privacy and liberty interests, as aforementioned, and the fundamental substantive due process rights afforded and due Plaintiffs.

49.  Damages to be ascertained by this Honorable Court.

50.  Declaratory relief indicating that the Tb skin test provisions of the law of the State of Hawai’i are subject to the religious exemption rights of Plaintiffs as expressed on independent and adequate state law basis as well as grounded in the fundamental protections of the United States Constitution.

51.  Other relief as fashioned by this Honorable Court.
PRAYER FOR RELIEF

     By reason of the premises, Plaintiffs have been injured in amounts which are presently unascertainable but which shall be shown at trial.
WHEREFORE, Plaintiffs pray as follows:
     That this Honorable Court set this matter for a hearing as soon as possible, and at the Conclusion thereof, a preliminary injunction be issued enjoining, State of Hawaii, Department of Health, State of Hawaii Department of Education, and Hilo High School, and each of them, and their agents, servants, and employees to desist and refrain from denying admission of Alena N. Horowitz to Hilo High School classroom and extracurricular activities during the pendency of this action.
     That following a final hearing, State of Hawaii, Department of Health, State of Hawaii Department of Education, and Hilo High School, and each of them, and their agents, servants, and employees to desist and refrain from denying admission of Alena N. Horowitz to Hilo High School classroom and extracurricular activities.
     That this Honorable Court grant a Temporary Restraining Order, Preliminary Injunction Order and ultimately a Permanent Injunction Order and Declaratory Relief in order to prevent further harm to Alena N. Horowitz.
     That Plaintiffs be awarded general special and consequential damages in an amount to be proven at trial.
     That Plaintiffs be awarded punitive damages in an amount to be proven at trial.
     That Plaintiffs be awarded their costs, expenses and attorneys’ fees incurred in this matter.
     That Plaintiffs be awarded such other and further relief as the Court deems just and proper in the premises.
DATED: Hilo, Hawaii _____________________________

 

________________________
GARY C. ZAMBER
Attorney for Plaintiffs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GARY C. ZAMBER #8446
P.O. Box 1
Ninole, HI 96773
Telephone: 808-896-7864
Facsimile: 808-962-0024

Attorney for Plaintiffs

IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

STATE OF HAWAII

 

SUMMONS

STATE OF HAWAII

To the above-named Defendants

You are hereby summoned and required to serve upon GARY C. ZAMBER, Plaintiffs’ attorneys, whose address is P.O. Box 1, Ninole, Hawaii 96773, an answer to the Complaint, which is herewith served upon you, within twenty (20) days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint.