Untitled Document

GARY C. ZAMBER, #8446
PO Box #1
Ninole, HI 96773
Tele: 808-896-7864
Fax: 808-962-0024
Attorney for Plaintiffs

I.INTRODUCTION On or about September 1, 2006 Plaintiff Alena N. Horowitz was forced from Hilo High School by public health officials’ orders for failing to have a generally required TB skin test despite her bona fide religious exemption and conviction, established church affiliation, and father’s filing of a written religious exemption form with school administrators covering “immunization” and “TB skin testing.”

This memorandum covers seven primary areas concerning this case: 1) Constitutional entitlements, 2) Applicable Constitutional Provisions of the State of Hawai’i 3) Local religious exemption statutes, 4) Defendants’ civil torts, 5) Defendants’ arbitrary and capricious actions with special focus on vagueness of law, 6) Plaintiffs’ entitlement to declarative relief, 7) Legal basis for temporary restraining order and injunctive relief, and 8) Damages and awards.

A) Now Plaintiffs’ fundamental rights have been violated. The terms of the Constitution of the State of Hawai’i derives its fundamental standing from the Constitution of the United States of America with adaptation made on behalf of the people of the State of Hawai’i. The following provisions of the U.S. Constitution are applicable to Plaintiff’s case and the rights expressed therein have been, and continue to be, violated by the actions or want of action of the Defendants:
i. Amendment I:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (Emphasis added)

ii. Amendment IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added)

iii. Amendment V:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis added)

iv. Amendment IX:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

v. Amendment X:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
VI. Amendment XIV:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.(Emphasis added)

B) The aforementioned fundamental rights are being violated by the Defendants’ refusal to allow Plaintiff, Alena N. Horowitz, attendance at Hilo High School classes, social events, and extracurricular events.

C) It is clear that a number of fundamental, guaranteed, and protected rights are being violated as Defendants have refused to recognize, and as required by clear State provisions, infra, the legal religious exemption from the Tb skin test immunization medical-examination requirements.
2. Applicable Constitutional Provisions of the State of Hawai’i

Defendant’s actions or want of action implicate and violate the following provisions of the Constitution of the State of Hawai’i:
A. CONSTITUTION OF THE STATE OF HAWAI’I

We reserve the right to control our destiny, to nurture the integrity of our people and culture, and to preserve the quality of life that we desire. We reaffirm our belief in a government of the people, by the people and for the people, and with an understanding and compassionate heart toward all the peoples of the earth, do hereby ordain and establish this constitution for the State of Hawaii. [Am Const Con 1978 and election Nov 7, 1978].

Section 2. All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possessing of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities. [Am Const Con 1978 and election Nov 7, 1978]

Section 4. No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. [Ren and am Const Con 1978 and election Nov 7, 1978]

Section 5. No person shall be deprived of life, liberty or property 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 race, religion, sex or ancestry. [Ren and am Const Con 1978 and election Nov 7, 1978]

Section 6. The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right. [Add Const Con 1978 and election Nov 7, 1978]

Section 7. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978].

Section 8. No citizen shall be disfranchised, or deprived of any of the rights or privileges secured to other citizens, unless by the law of the land. [Ren Const Con 1978 and election Nov 7, 1978].

Art. X-Sec.1 PUBLIC EDUCATION
Section 1. The State shall provide for the establishment, support and control of a statewide system of public schools free from sectarian control, a state university, public libraries and such other educational institutions as may be deemed desirable including physical facilities therefor. There shall be no discrimination in public educational institutions because of race, religion, sex or ancestry; nor shall public funds be appropriated for the support or benefit of any sectarian or private educational institution. [Ren and am Const Con 1978 and election Nov 7, 1978]. (Emphasis added).

i. Hawaii Revised Statutes, Title 19 Department of Health Chapter 321 Section 11 Subjects of health rules, generally, states:
"Medical examination, vaccination, revaccination, and immunization of school children. No child shall be subjected to medical examination, vaccination, revaccination, 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, but no objection shall be recognized when, in the opinion of the department, there is danger of an epidemic from any communicable disease;" [HRS §321-11 (2005 Cumulative Supplement)] (Emphasis added).

ii. Hawaii Revised Statutes, TITLE 18. EDUCATION Chapter 302A, as amended, provides in relevant part:
[§302A-1154] Immunization upon entering school; tuberculosis clearance. (a) No child shall attend any school in the State unless the child presents to the appropriate school official documentation satisfactory to the department of health that the child has received immunizations against communicable diseases as required by the department of health.

(b) No child shall be admitted to attend any school for the first time in the State unless the child presents to the appropriate school official documentation satisfactory to the department of health that the child has been examined and tested according to the rules of the department, and is free from tuberculosis in a communicable form. [L 1996, c 89, pt of §2; am L 1998, c 60, §1; am L 2000, c 109, §1]

The words “immunization” and phrase “tuberculosis clearance” as above separated by a semi-colon, “;”, within the same sentence structure of §302A-1154 make these two clauses of one compound sentence unified as a whole in the title heading indicating the legislative intent of linking both together, with both affected by HRS [§302A-1156] Exemptions as follows:
[§302A-1156] Exemptions. A child may be exempted from the required immunizations:
(1) If a licensed physician certifies that the physical condition of the child is such that immunizations would endanger the child's life or health; or
(2) If any parent, custodian, guardian, or any other person in loco parentis to a child objects to immunization in writing on the grounds that the immunization conflicts with that person's bona fide religious tenets and practices. Upon showing the appropriate school official satisfactory evidence of the exemption, no certificate or other evidence of immunization shall be required for entry into school. [L 1996, c 89, pt of §2] (Emphasis added)

The clear and reasoned statutory intent of the HRS §302A 1154-1157 series of laws pertaining to “immunization,” “TB clearance,” and religious “exemption” was to “make the education laws easier to understand,” and to “recodify the education statutes to create a state education policy framework that is less compliance and regulatory oriented and more supportive of schools becoming student focused.” (House Journal-Standing Committee Reports SCRep. 1438-96 Education on S.B. No. 2446; Senate Journal –Standing Committee Reports SCRep. 1966 Education on S.B. No. 2446).
Oddly and ironically, the opposite result has been established by the Department of Health since these laws were enacted as will be further discussed below. (Emphasis added in quotes).

iii. Hawaii Revised Statutes, TITLE 19. HEALTH Chapter 325 Infectious And Communicable Diseases, as amended, provides:
[§325-34. Exemptions.] ... “No person shall be subjected to vaccination, revaccination or immunization, who shall in writing object thereto on the grounds that the requirements are not in accordance with the religious tenets of an established church of which the person is a member or adherent, or, if the person is a minor or under guardianship, whose parent or guardian shall in writing object thereto on such grounds, but no objection shall be recognized when, in the opinion of the director of health, there is danger of an epidemic from any communicable disease.” [L 1945, c 171, pt of §1; am L 1947, c 165, §1(b); RL 1955, §49-34; am L Sp 1959 2d, c 1, §19; am L 1967, c 23, §4; HRS §325-34; am L 1974, c 6, §2(2); gen ch 1985] (Emphasis added)

B. Hawaii Administrative Rules, Title 11, Department of Health Chapter 157, “Examination and Immunization” provides definition and guidance to the application of relevant statutes. It appears therein that “immunization” by definition includes a TB skin test and that said immunizations are subject to religious exemptions. Here, specific exemption provisions exist to the general mandates found in the Chapter. It reads:
§11-157-2 Definitions. . . .
“Immunization” means the process of administering a specific substance to promote an immune response, including antibody production.

“Immunizing agent” means a vaccine, toxoid, or other substance used to increase an individual’s immunity to a disease.

It is important to recognize the distinctions between the aforementioned definitions as they pertain to the exemption statute generally, and the religious allowance specifically in HAR §157-5 as follows:
§11-157-5 Exemptions.
(a) Medical exemptions from the requirements for specific immunizing agents shall be granted upon certification by a physician on the physician’s professional stationery that an immunization is medically contraindicated for a specific period of time. The original certificate shall be provided to the exempt person or parent or guardian. A copy of the certificate shall be maintained in the student’s school health record. Reports of such certificates shall be submitted to the department by each school.
(b) A religious exemption shall be granted to a student whose parent, custodian, guardian, or other person in loco parentis certifies that the person’s religious beliefs prohibit the practice of immunization. Requests for religious exemptions based on objections to specific immunizing agents will not be granted. Students who have reached the age of majority shall apply on their own behalf. The certification shall be retained in the student’s health record. Reports of such exemptions shall be submitted to the department by each school.
(c) If at any time, the director determines that there is the danger or presence of an outbreak or epidemic from any of the communicable diseases for which immunization is required under this chapter, the exemption from immunization against such disease shall not be recognized and inadequately immunized students shall be excluded from school until the director has determined that the presence or danger of the outbreak or epidemic no longer exists. [Eff 11/5/81; am and comp 6/17/93; am and comp 10/23/97; am and comp 8/27/01] (Auth: HRS §302A-1162, 321-9, 321-11(22), 325-13, 325-32) (Imp: HRS §302A-1156, 302A-1157, 321-1, 321-9, 321-11, 325-13, 325-32, 325-34, 325-35) (Emphasis added.)

The religious exemption found at the above HAR §157-5(b) specifically exempts certifying parties from the “practice of immunization.” Given the definitions found at §11-157-2, supra, the ‘religious exemption’ afforded by HAR §157-5(b) is broader than the ‘medical exemption’ found in HAR §157-5(a). The religious exemption contemplates the practice of immunization techniques and Plaintiffs’ exclusion there from while the medical exemption refers only to the more limited “immunizing agents.”

The broader language of HAR §157-5(b) covers the Tb skin test as “immunization” is defined in HAR §157-2 Definitions as “the process of administering a specific substance to promote an immune response, including antibody production.” Whereas, the same set of definitions indicates “immunizing agent” means “a vaccine, toxoid, or other substance used to increase an individual’s immunity to a disease.” The distinction is clear.
While the Tb skin test is not an “immunizing agent” in that it is not a “vaccine, toxoid, or other substance used to increase an individual’s immunity to a disease”, it is certainly an “immunization” as the specific substance (Tb antigen) is administered by through-the-skin (i.e., parenteral) injection to promote a systemic (i.e., whole body) immune response indicated by the “induration” observed in the Tb positive response. At a hearing on a preliminary injunction, scientific experts may be called upon to clarify any ambiguities in this regard.
C. In sum, religious exemption to “immunization” is found in HRS §302A-1156, HRS §321-11(22), HRS §325-34 and HAR §11-157-5(b). Additionally, and unambiguously, religious exemption to TB skin testing as a “medical examination” is clearly provided for in HRS §321-11(22).
Any difficulty with comprehending the statutes is resolved by a straightforward reading and application of the statutes.
4. Defendants’ Civil Torts

When it is determined that there is imminent danger of epidemic or serious outbreak of communicable disease, the department may refuse, modify, or limit attendance at any school in the State.

Webster’s Dictionary defines the term “Imminent” as “ready to take place,” or “hanging over one’s head” which is not the case with TB case rates in Hawaii nearly stagnant since the inception of these statutes in 1996. Thus, there is no imminent danger of epidemic, or serious outbreak of TB, that would justify the department’s refusal to limit Plaintiff’s attendance at schools throughout the State.

Webster’s Dictionary defines Epidemic as “1.: affecting or tending to affect a disproportionately large number of individuals within a population, community, or region at the same time. 2. a: excessively prevalent. . . b.: contagious <contagious laughter>.”
The online resource MedicineNet.com defines Epidemic as

“The occurrence of more cases of a disease than would be expected in a community or region during a given time period. A sudden severe outbreak of a disease such as SARS.”

“The occurrence in a community or region of an illness clearly in excess of normal expectancy, as determined by the department.”

It is clear that there has been no significant increase in TB case rate fluctuations in Hawaii over the past decade that would reflect an “illness clearly in excess of normal expectancy”
Despite the Department of Health promoting ad odium threatening, allegedly “dangerous” TB “epidemic” statistics with compelling persuasion graphics published in local newspapers, there is, nor has been, any substantial threat of TB “in excess of normal expectancy.”
To put case rates in proper perspective the following table may help:

One case per 100 equals 1% . . . . . . . . 1/100 = 1%
One case per 1000 equals one tenth of 1% . 1/1,000 = .1%
One case per 10,000 equals one hundreth of 1% or 1/10,000 = .01%
One case per 100,000 equals one thousandth of 1% or 1/100,000 = .001% S

J. So the TB rate for Hawaii varies normally between 10-15/100,000 or approximately one hundredth to 1.5 hundredth of 1% which is very low as compared with numbers of children testing falsely positive and sustaining injury from prescribed TB antibiotics and chest X-rays known to be a cancer risk.
This, plus the fact that as much as 30-50% of tests produce false positives, is the main reason federal officials and the AAP experts discourage TST among low risk children and adults. The cost/benefit and risk/benefit of this practice proves more harm than good comes from this program.

K. EXHIBIT D (Table 20: “Tuberculosis Cases and Case Rates per 100.000 Population; States, 2004 and 2003”) shows official statistics issued by the U.S. Government’s Census Bureau showing Hawaii’s TB rate (9.2) is significantly lower than the District of Columbia (14.6). Even so, EXHIBIT E shows the TB control program in our nation’s capitol follows the American Academy of Pediatrics (AAP) and Centers for Disease Control and Prevention guidelines for Tuberculin Skin Testing in Children. These guidelines state:
In 1996, the American Academy of Pediatrics (AAP) recommended targeted tuberculin skin testing (TST) of children while discouraging routine TST of children without risk factors for tuberculosis (TB). Recent studies have provided evidence in support of the targeted TST and recommendations that favor risk assessment over universal screening with TST. . . . The challenge for public health and school officials is to develop a screening program that avoids stigmatization of the at-risk group. Until then, pediatric healthcare providers will continue to have a key role in identifying children at risk for latent TB infection by using the AAP-endorsed risk-assessment questionnaire and should screen children with TST only when > 1 risk factor is present. (Source: Reznik M., Ozuah PO. Tuberculin skin testing in children. Emerg infec Dis [serial on the Internet] 2006 May 5; Vol 12, No. 5. Available from: http://www.cdc.gov/incidod/ElD/vol12no05/05-0980.htm (Emphasis added).

It should be noted that child Plaintiff has no risk factors for TB; has a “TB-free” status certification from her medical doctor (EXHIBIT B); has now developed a social stigma directly due to officials’ malfeasant actions contrary to the aforementioned guidelines. Furthermore, in violation of the national standard of medical care in public health practice Department of Health officials refused apply the “AAP-endorsed risk-assessment questionnaire” that Plaintiff Dr. Horowitz recommended along with acceptance of Alena’s licensed medical doctor’s assurance that Plaintiff child was/is TB free. Besides all of the above, Defendants refused reasonable consideration of the fact that child Plaintiff runs cross country routinely up to 8 miles daily with her team, all sufficient proof of no TB risk status, and constituting bad faith operations in the administration of the TB Control Program of Hawaii.

Moreover, as Department of Health officials have by their arbitrary, arrogant, and capricious actions quarantined this (Plaintiff) school-child by forcing her home study and school dismissal, HRS §321-1(d)advances immediate remedial action compelling the health department director to make public the specific “evidence of a health hazard within seventy-two hours of the action taken or rescind the action. The director shall make public the findings” which caused the quarantine including the specific statistics legitimizing cause of action. Plaintiff Leonard Horowitz had requested this information from Defendants AKAMINI and ROSARIO but they never provided any good-faith or informative response.(Emphasis added).

This procedural reporting, and gross negligence from the lack thereof, is also required under HRS §321-1(g) that states:

       “The department, during the prevalence of any severe pestilence or epidemic, shall publish a weekly report of the public health.”

       Since this “weekly report” has never been published by the Department of Health, this evidences either:
       a. there has never been any severe TB epidemic, and all TB testing mandates for low risk persons have been fraudulent, or
       b. else the department’s responsible officials have been grossly negligent.

Since nearly two weeks have passed since this tort against the Plaintiffs has occurred without the director’s required “seventy-two hours” response as per §321-1(d), he/she is in breach of this statute and subject to criminal prosecution on at least two counts (the second being the violation of Plaintiffs’ religious exemption). For these torts, the Defendants are susceptible for punitive action as per the following statutes:

§321-18 Penalty. Except when another penalty is provided, every person who violates any rule of the [health] department, after the same has been adopted, as provided in section 321-10, shall be guilty of a misdemeanor. [PC 1869, c 59, §8, RI. 1925, §914; RL 1935 §906 . . . HRS §321-18; am L 1983, c 100, §3].

§325-14 Penalty. Any person violating this chapter, or any rule or regulation of the department of health relating thereto, shall be deemed guilty of a misdemeanor. Except as herein otherwise provided the punishment therefore shall be the same as provided by section 321-18. [L 1911, c 118, §16; RL 1925, §953; RL 1935, §1113; am L 1943, c 43, §5(b)(2); RL 1945, §2342; RL 1955, §49-14; HRS §325-14]

§325-37 Fraud; willful misrepresentation; failure to comply; penalties. Any person who by fraud or willful misrepresentation circumvents or defeats or attempts to circumvent or defeat any purpose or provision of any of sections 325-32 to 325-34 [religious exemptions] or who, required by any provision of section 325-32, to be vaccinated or immunized, fails to be so vaccinated or immunized shall be fined not more than $25 or imprisoned not more than thirty days, or both. [L 1945, c 171, pt of §1; am L 1947, c 165, §1(d); RL 1955, §49-37; HRS §325-37; am L 1974, c 6, §2(4)](Emphasis added).

§321-10 Rules, adoption, effect. All rules and regulations made by the department of health shall be made in conformity with chapter 91. They shall have the force and effect of law. [PC 1869, c 59, §7; RL 1925, §913; RL 1935, §905; am L 1939, c 136, §1; RL 1945, §2012; am L 1945, c 116, §1(a); RL 1955, §46-12; am L Sp 1959 2d, c 1, §19; am L 1965, c 96, §28; HRS §321-10]

5) Defendants’ arbitrary and capricious actions with special focus on vagueness of law

A. Defendants actions as detailed above have been arbitrary and capricious. The Defendants have failed to provide any reasoned analysis for their deprivation of minor Plaintiff’s fundamental rights, notwithstanding the fact that this information has been requested by Plaintiffs on several occasions, and every other health department engaged in TB control throughout the U.S. with equal or even higher incidence of TB provides religious exemptions for TB skin testing for those who demand them precisely as they do with all vaccinations.(See: Declarations of Leonard G. Horowitz and Gary C. Zamber)

B. Thus, all evidence strongly suggests these Defendants have: 1. violated the faith and trust granted them by the public and legislature; 2. misapplied statutes and definitions of law to carrying out illegal, arguably criminal, medical malpractices and public deceptions that; 3) set a dangerous national precedent challenging fundamental human rights constitutionally preserved and broadly cherished.

C. In light of the abundantly clear language of HRS §321-11 which provides for religious exemption from “medical examination” and “immunization,” even if we were to falsely assume an imminent danger of TB epidemic as required by law to suspend otherwise required religious exemptions, the Defendants would need to: 1) publicly account for their allegations of imminent danger with intelligence and comparative statistics as per HRS §321-1(d)(g) which they have failed to do; and 2) clarify for public knowledge what compelling reason(s) exists for asserting the TB test is neither a type of “medical examination” and/or “immunization” contrary to definitions of these and related terms in their Administrative Rules book using common sense analysis there-from which they have failed to provide. Either of these legally-required actions yields an untenable result disrespecting fundamental rights medical common sense. TB skin testing is obviously a “medical examination” engaging antibody production as is “immunization,” (defined by HAR §11-157 (2)), and there is no epidemic or outbreak of TB in Hawaii.

D. A reasonable person would interpret the language of the statutes covering TB skin testing as an “immunization” as defined in HAR §157-2 “Definitions.” Herein, the word is defined as: “the process of administering a specific substance to promote an immune response, including antibody production.” These definitions differentiate and clarify that “immunization” is different from an “immunizing agent” which is defined as “a vaccine, toxoid, or other substance used to increase an individual’s immunity to a disease.” The department’s actions and public proclamations obfuscate these clear definitions. Substantial science in peer-reviewed journals evidences the fact that the TB skin testing routinely causes system-wide antibody production and an enduring immune system response. Therefore, there is no tenable cause, other than fraud, for health officials to consistently claim that for the purpose of denying religious exemptions, “TB Clearance” is different from “immunization.”
E. This unnecessary and harmful obfuscation is not done, the Plaintiff’s assume with malicious intent; yet it is nonetheless grossly negligent. Plaintiff Dr. Horowitz has on several occasions attempted to educate TB Control Program officials seemingly mesmerized by a blind bias that what they are doing is “good for public health.” Therefore, official actions express gross criminal negligence affected intentionally and not simply excusable neglect.

To further prove the false state of mind and needless ambiguity of those that carry out this medical malpractice of routinely testing low risk children for TB, the primary term used by administrators in messaging schools and the public in this regard is “TB Clearance,” a phrase never defined legislatively, scientifically, or medical-legally. Since this term is coupled with “immunization” in the lead compound sentence characterizing and asserting these statutes, §302A-1154; 1156, the two terms shall be considered as one descriptive administrative process demanding compliance of health officials in issuing religious exemptions under current, non-epidemic, low risk, failing imminent danger, conditions.

G. According to the Rules of Statutory Construction C1-15, either the language of these statutes is clear or they are void for vagueness. The Plaintiff’s read these statutes as abundantly clear and perceive the exclusive confusion rests with the Department of Health. The ambiguity to the point of absurdity in this case derives from officials’ malfeasance. If these officials continue obfuscating these clear statutes by their ignorance and arrogance, then these statutes effectively become vague to the point of absurdity and unconstitutionality. The reason and spirit of the law is to be considered and construction that leads to an absurdity shall be rejected. Therefore, the Department of Health’s administrative obfuscation of these laws and rules shall be rejected.

H. Hawaii’s religious exemption in matters of health exists to prevent unwanted invasions of overreaching officials into the lives of people who hold bona fide religious objections to medical experimentations, examinations, immunizations, and vaccinations. Our statutes are clear. However, if there is such ambiguity that the administrative and executive departments of government in Hawai’i are unable to see this clarity then either the statute is overly vague or there simply needs to be a judicial determination on this matter once and for all. This prayer before this Honorable Court shall serve the best interest of public health and social welfare.

A. The Plaintiffs are entitled to declaratory relief based upon the application of Department of Health “rule” where the same violates constitutional or statutory rights.

The Public Proceedings and Records Title 8, Chapter 91, Administrative Procedure, Section 7 (§91-7) of the State of Hawaii decrees the “Declaratory judgment on validity of rules” may be provided by the Honorable Court when:

Any interested person may obtain a judicial declaration as to the validity of an agency rule as provided in subsection (b) herein by bringing an action against the agency in the circuit court of the county in which petitioner resides or has its principal place of business. The action may be maintained whether or nor petitioner has first requested the agency to pass upon the validity of the rule in question.

B. In 1981, the Hawaii Supreme Court ruled “Constitutional safeguards were designed to protect individual from arbitrary, oppressive and harassing conduct on part of government officials. (Nakamoto v. Fasi, 635 P. 2d 946, 64 Haw. 17)(Emphasis added)

C. Arbitrary and capricious conduct in violation of Constitutional rights is not tolerated in either a criminal or civil context. In the criminal domain, the Hawaii Supreme Court ruled that Fourth Amendment interest of the individual must be weighed against the public interest. The Court noted in Nakamoto,

“The defendants have attempted to justify this policy on grounds of public necessity, but necessity in terms of possible harm to the public, in and of itself, will not justify the imposition of an unreasonable requirement, for the public interest must be weighed against the Fourth Amendment interest of the individual. (Citing U.S. v. Martinez-Fuerte, 428 U.S. 543, 555 (1976)).

This reasoning in Nakamoto, though admittedly in another context, is likewise applicable in the current case. It is clearly insufficient by statute and due process to merely assert possible harm to the public in order to justify a harmful breach of fundamental constitutionally protected rights.

The requirement that all students in Hawaii’s public and private schools submit to the federally discouraged practice of tuberculosis skin testing (TST) of children without risk factors for tuberculosis (TB) is an unreasonable, unconstitutional, and arguably criminal imposition.

The reasoning of the Nakamoto Court is applicable by analogy to the present case of a religious student being forcibly removed from socializing with her friends at school, competing athletically, and receiving her cherished education. Although in a civil administrative context the standard is somewhat lessened, fundamental rights shall not be subject to arbitrary and capricious decision making.

More so, in the civil matter pertaining to Administrative Law in Hawaii ex rel. Attorney General v. Federal Emergency Management Agency (93 F. Supp.2d 1103, reversed 294 F.3d 1152) “Agency rule would be arbitrary and capricious if agency relied on factors that Congress had not intended it to consider, entirely failed to consider important aspect of problem, offered explanation for its decision that ran counter to evidence before agency, or rendered explanation so implausible that it could not be ascribed to difference in view or product of agency expertise. (5 U.S.C.A. §706(2))

Also, an administrative rule cannot conflict with the statute it attempts to implement according to Foytik v. Chandler (966 P.2d 619, 88 Hawai’I 307, as amended) and Agsaluc v. Blalack (699 P.2d 17, 67 Haw. 588); and administrative rules may not enlarge, alter or restrict provisions of statute being administered as determined in Topliss v. Planning Com’n (842 P.2d 648, 9 Haw. App. 377) and Jacober v. Sunn 715 P.2d 813, 6 Haw. App. 160).

The aforementioned cases pertain by analogy to this instant case. Current Hawaii Revised Statutes and Administrative Rules regulating the administration of “immunizations,” “vaccinations,” “TB Clearance” and religious “exemptions” clear enough to perceive official malfeasance. The Administrative Rules and State statutes conflict primarily as a result of official dereliction of duty to adequately inform the public, understand their rules and definitions therein, and professionally direct, as other agencies are doing nationwide according to their laws, the legislative reasoned intent of §302A 1154-1157, particularly mandating religious exemptions. Arbitrary, vague, and capricious administrative communications and negligent, arguably criminal, medical mal-practicing officials affecting the lives and rights of children and families throughout the State serve no positive purpose in public health.

In violation of fundamental rights and liberties as guaranteed by the U.S. Constitution, and the Constitution of the State of Hawaii, local public health practice standards for TB prevention are egregiously suspect. Local codes, if interpreted in Defendents’ fashion, appear to grant unbridled health powers to public health officials that violate fundamental religious rights of citizens, stigmatize and ostracize religious school children, and violate the standard of public health practice in TB screening procedures established by the U.S. Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics (AAP). These esteemed federal entities have repeatedly and presently directed “public health and school officials . . . to develop a screening program that avoids stigmatization of the at risk group . . . by using the AAP-endorsed risk-assessment questionnaire . . . discouraging routine TST of children without risk factors for TB as is the case for this Plaintiff.

The Department of Health exceeded statutory authority in denying religious exemption demanded by Plaintiffs to the TB skin test. Officials have failed to provide reason for their decision as to why they denied religious exemption to the Plaintiffs and the public.

Plaintiffs pray for declaratory relief in the form of a judicial determination that the religious exemption to TB skin testing shall not be denied.

A. The Plaintiff Alena Horowitz, a person properly asserting her religious conviction and exemption to otherwise mandatory TB skin testing, has been forced to leave school and as a result been damaged by officials’ arbitrary and capricious abuse of power. Officials have violated Plaintiffs’ legal rights attempting to justify their actions ambiguously alleging a non-imminent “danger” of TB epidemic that compels their decision to violate fundamental rights, state statutes, and national public health policy.

B. Department of Health officials have not followed reviewable administrative procedures and have violated laws as aforementioned. Department of Health personnel have generally operated beyond scrutiny by failing to provide to the public and Plaintiffs any specific published scientific rationale for their decision to suspend religious exemptions to TB skin testing as required per HRS §321-1(d) and (g). By so doing, said officials are administering a dangerous, nationally unprecedented, TB Control Program.

C. Department of Health officials have no legal or scientific basis to suggest that the child Plaintiff would somehow allegedly pose a threat to other students. In fact, substantial evidence exists to the contrary including Plaintiff’s medical examination certifying her TB-free status. As a result of denying her the exemption required by law, Plaintiff Alena Horowitz has been socially ostracized, religiously persecuted, and educationally hampered by the Defendants’ actions. It is urgent that she return to school.

D. Hawai’i Rules of Civil Procedure (“HRCP”), Rule 65, provides a remedy to enjoin and provides requirements for injunctions and restraining orders respectively. HRCP Rule 65 provides for INJUNCTIONS; a Preliminary injunction. (1) NOTICE. And (2) CONSOLIDATION OF HEARING WITH TRIAL ON MERITS. This rule states:

“Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a) (2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.

(b) Temporary restraining order; notice; hearing; duration. A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained a temporary restraining order shall proceed with the application for a preliminary injunction and, if that party does not do so, the court shall dissolve the temporary restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
(c) Security. In all cases, the court, on granting a temporary restraining order or a preliminary injunction or at any time thereafter, may require security or impose such other equitable terms as it deems proper. No such security shall be required of the State or a county, or an officer or agency of the State or a county.
The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule.
(d) Form and scope of injunction or restraining order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
(e) Civil defense and emergency act cases. This rule shall not modify section 128-29 of the Hawai‘i Revised Statutes.
(Emphasis added).

Plaintiffs pray for issuance of a temporary restraining order, preliminary and permanent injunctive relief, and a stay of the untenable decision made by Departments of Health and Education officials. There is likelihood that the subject person will prevail on the merits of an appeal from the administrative proceeding to the court. Irreparable damage to the subject person will result if a stay is not ordered. No irreparable damage to the public will result from the stay order, and the public interest will be served by the stay order.

Plaintiffs pray this Honorable Court reverse or modify the administrative decision and order of the Department of Education and Department of Health as the substantial rights of Plaintiffs have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional and statutory provisions; and (2) In excess of the statutory authority and jurisdiction of the agency, and (3) Made upon unlawful procedure, and (4) Affected by other error of law, and (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, and (6) Arbitrary and capricious, and characterized by abuse of discretion and clearly unwarranted exercise of discretion.

Alena N. Horowitz is being wrongfully excluded from school activities notwithstanding the fact that she, by and through her father, filed an appropriate document of religious exemption. The Department of Health, without providing requested written rationale for decision, has taken the position that Tb skin test examination is not covered by the exemption. However, it is clear that the belief in religious blood purity provisions held as bona fide tenet of Plaintiffs, as members of an established church holding such standards, would be breached by the TB skin test. The minor Plaintiff should, by legal right, be exempt from the general mandate of this immunization examination.
The denial of school entry to Alena N. Horowitz by not honoring her bona fide religious exemption to the generally applicable immunization and examination laws, absent compelling state interest employing least restrictive means, is resulting in a continuous and compounding harm as outlined in the Application and Declarations respectively, and that can only be remedied by injunctive relief.

WHEREFORE, Plaintiffs pray that the temporary injunction requested be granted and that the clerk of this court issue a writ of injunction pending final hearing and determination of the cause, restraining and enjoining Defendants from denying Alena N. Horowitz access to Hilo High School classes and extracurricular activities.
DATED: Hilo, Hawaii __________________________________

                                       ________________________
     GARY C. ZAMBER
     Attorney for Plaintiffs

Legal Memorandum in Support of Complaint Filed Against State of Hawaii's Dept. of Health and Dept. of Education For Torts Arising from the School Dismissal of Alena N. Horowitz for Failing to Take the TB Skin Test Due to Religious Objections.